In The United States Court Of Appeals For The Tenth Circuit

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 1 Case Nos. 13-9578/13-9588 In The United States Court Of Appeals For The Tenth Circuit CHICKASAW NATION, further designation under review by the court, Petitioner Cross/Respondent v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross/Petitioner On Petition for Review from the National Labor Relations Board Mark Gaston Pearce, Chairman; Richard F. Griffin, Jr., Member; and Sharon Block, Member, Nos. 17-CA-25031 and 17-CA-25121 PETITIONER CROSS/RESPONDENT S REPLY BRIEF MICHAEL BURRAGE WHITTEN BURRAGE 1215 Classen Drive Oklahoma City, OK 73103 (405) 516-7800 burrage@whittenburragelaw.com May 5, 2014 LLOYD B. MILLER Counsel of Record DOUGLAS B. L. ENDRESON FRANK S. HOLLEMAN SONOSKY, CHAMBERS, SACHSE, ENDRESON & PERRY, LLP 1425 K Street, NW, Suite 600 Washington, DC 20005 (202) 682-0240 lloyd@sonosky.net dendreson@sonosky.com fholleman@sonosky.com [Additional Counsel on Inside Cover] ORAL ARGUMENT REQUESTED

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 2 STEPHEN H. GREETHAM CHICKASAW NATION 2020 Lonnie Abbott Blvd. Ada, OK 74820 (580) 272-5236 stephen.greetham@chickasaw.net LEONARD COURT CROWE & DUNLEVY 20 North Broadway, Suite 1800 Oklahoma City, OK 73102 (405) 235-7706 courtl@crowedunlevy.com BOB RABON RABON, WOLF & RABON 402 East Jackson (Highway 70) Hugo, OK 74743 (580) 326-6427 bob.rabon@sbcglobal.net

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 3 TABLE OF CONTENTS STANDARD OF REVIEW... 1 ARGUMENT... 2 I. CONGRESS DID NOT INTEND TO APPLY THE NLRA TO INDIAN TRIBES.... 2 A. Statutory Silence Does Not Make The NLRA Applicable To Indian Tribes.... 2 B. Traditional Tools Of Statutory Construction Confirm That The NLRA Does Not Apply To Indian Tribes.... 4 II. III. 1. Congress did not intend to apply the NLRA to Indian tribes.... 4 2. Enactments before and after the NLRA reject the Board s position.... 6 THE BOARD S SAN MANUEL TEST IS CONTRARY TO FEDERAL LAW.... 7 A. Tuscarora Is Inapplicable Because The Nation Conducts Gaming In The Exercise Of Its Sovereign Authority.... 8 B. The Coeur d Alene Exceptions In The Board s San Manuel Test Are Contrary To Federal law.... 12 1. Tribal rights of self-government are not limited to intramural matters.... 13 2. The Board s assertion that general treaty rights afford no protection for tribal self-government has no merit.... 15 3. Requiring proof that Congress intended the NLRA not to apply to Indian tribes violates federal law.... 18 APPLYING THE NLRA TO THE NATION WOULD ABROGATE ITS RIGHTS OF SELF-GOVERNMENT AND POWER OF EXCLUSION.... 19 A. The Nation s Treaties Protect It From Federal Laws That Would Interfere With Its Treaty Rights.... 19 B. Applying The NLRA To The Nation Would Interfere With Its Treaty Rights Of Self-Government And Power Of Exclusion.... 24 i

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 4 TABLE OF AUTHORITIES Cases Page(s) Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300 (1965)... 2 Atl. & Pac. R.R. Co. v. Mingus, 165 U.S. 413 (1897)... 20, 23 Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173 (10th Cir. 2010)... 26 California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987)... 9 Chickasaw Nation v. Oklahoma ex rel. Okla. Tax Comm n, 31 F.3d 964 (10th Cir. 1994), rev d on other grounds, sub nom. Okla. Tax Comm n v. Chickasaw Nation, 515 U.S. 450 (1995)... 21 Chickasaw Nation v. United States, 208 F.3d 871 (10th Cir. 2000), aff d, 534 U.S. 84 (2001)... 17, 18 Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970)... 20, 21 Crabtree v. Madden, 54 F. 426 (8th Cir. 1893)... 23 Dobbs v. Anthem Blue Cross & Blue Shield, 600 F.3d 1275 (10th Cir. 2010)...passim Donovan v. Coeur d Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985)... 7 Donovan v. Navajo Forest Prods. Indus., 692 F.2d 709 (10th Cir. 1982)... 4, 10, 16 ii

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 5 Ex parte Crow Dog, 109 U.S. 556 (1883)... 7 EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir. 1989)...1, 2, 10, 15, 16, 19 EEOC v. Fond du Lac Heavy Equip. & Constr. Co., 986 F.2d 246 (8th Cir. 1993)... 11, 16 El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999)... 6 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)... 8 FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960)... 7 Ford Motor Co. v. NLRB, 441 U.S. 488 (1979)... 26 Fort Apache Timber Co., 226 N.L.R.B. 503 (1976)... 7, 8, 10 Garland s Heirs v. Choctaw Nation, 59 Ct. Cl. 768 (1924)... 22 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002)... 1 Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Okla. Tax Comm n, 829 F.2d 967 (10th Cir. 1987)... 9, 14 Inyo County, California v. Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, 538 U.S. 701 (2003)... 3, 6 Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987)... 2, 5 iii

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 6 Keeble v. United States, 412 U.S. 205 (1993)... 7 Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751 (1998)... 15 McCulloch v. Sociedad Nacional de Marineros de Hond., 372 U.S. 10 (1963)... 4 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1981)... 8, 13, 24 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999)... 2 Montana v. United States, 450 U.S. 544 (1981)... 9, 16, 20, 24 Morris v. Hitchcock, 21 App. D.C. 565 (D.C. Cir. 1903), aff d, 194 U.S. 384 (1904)... 23, 24, 28 Navajo Tribe v. NLRB, 288 F.2d 162 (D.C. Cir. 1961)... 12 Nero v. Cherokee Nation of Oklahoma, 892 F.2d 1457 (10th Cir. 1989)... 12 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983)... 14, 26 NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)... 4 NLRB v. Chapa De Indian Health Program, Inc., 316 F.3d 995 (9th Cir. 2003)... 12 NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002)...passim iv

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 7 NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224 (1963)... 3 Palace Sports & Entm t, Inc. v. NLRB, 411 F.3d 212 (D.C. Cir. 2005)... 27 Phillips Petroleum Co. v. EPA, 803 F.2d 545 (10th Cir. 1986)... 11 Ramah Navajo Chapter v. Lujan, 112 F.3d 1455 (10th Cir. 1997)... 1 San Manuel Indian Bingo & Casino, 341 N.L.R.B. 1055 (2004), aff d on different grounds, 475 F.3d 1306 (D.C. Cir. 2007)... 6, 14 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)... 26 Smart v. State Farm Ins. Co., 868 F.2d 929 (7th Cir. 1989)... 12 Solis v. Matheson, 563 F.3d 425 (9th Cir. 2009)... 17 S. Indian Health Council, 290 N.L.R.B. 436 (1988)... 10 Strate v. A-1 Contractors, 520 U.S. 438 (1997)... 24 United States v. Dion, 476 U.S. 734 (1986)... 15, 24 United States v. Fox, 573 F.3d 1050 (10th Cir. 2009)... 11 United States v. Lara, 541 U.S. 193 (2004)... 13 v

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 8 United States v. Mazurie, 419 U.S. 544 (1975)... 4 United States v. Payne, 264 U.S. 446 (1924)... 7 United States v. Wheeler, 435 U.S. 313 (1978)... 8 United States v. Winans, 198 U.S. 371 (1905)... 7 U.S. Department of Labor v. OSHRC, 935 F.2d 182 (9th Cir. 1991)... 16 Williams v. Lee, 358 U.S. 217 (1959)... 28 Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)... 13 Treaties, Statutes and Regulations Treaty of Dancing Rabbit Creek, Sept. 27, 1830, 7 Stat. 333... 19, 20, 21 Treaty of New Echota, Dec. 29, 1835, 7 Stat. 478... 15 1855 Treaty of Washington, June 22, 1855, 11 Stat. 611... 18, 23 1866 Treaty of Washington, Apr. 28, 1866, 14 Stat. 769... 21, 22, 23 Act of July 5, 1862, ch. 135, 12 Stat. 528... 22 Indian Reorganization Act of 1934, 25 U.S.C. 477... 26 Indian Gaming Regulatory Act of 1988, 25 U.S.C. 2701(1)... 9 25 U.S.C. 2701(5)... 9 25 U.S.C. 2702(1)... 9 25 U.S.C. 2702(2)... 9 25 U.S.C. 2703(5)(A)-(B)... 8 25 U.S.C. 2710(b)(2)(F)... 25 Internal Revenue Code, 26 U.S.C. 4401... 17 vi

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 9 26 U.S.C. 4411... 17 National Labor Relations Act of 1935, 29 U.S.C. 152(2)... 1, 3, 5, 6, 12 29 U.S.C. 152(7)... 3 29 U.S.C. 157... 24, 26 29 U.S.C. 158... 27 29 U.S.C. 158(d)... 26, 27 29 U.S.C. 159... 26 29 U.S.C. 160... 27 29 U.S.C. 160(a)... 2 29 U.S.C. 164(b)... 6, 12 Civil Rights Act of 1871, 42 U.S.C. 1983... 3 Miscellaneous Chickasaw Nation Code 2-507... 6 Chickasaw Nation Public Gaming Act of 1994... 25 Arrell Gibson, The Chickasaws 147 (1971)... 14 Grant Foreman, The Five Civilized Tribes 101 (1934)... 14 vii

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 10 STANDARD OF REVIEW The Board s assertion that de novo review applies only to a preemption case, Bd.Br. 9 n.3, is foreclosed by NLRB v. Pueblo of San Juan, 276 F.3d 1186, 1190 (10th Cir. 2002), and EEOC v. Cherokee Nation, 871 F.2d 937, 938 n.1 (10th Cir. 1989) (de novo review of whether the ADEA applies to the Cherokee Nation). Deference to the Board s interpretation of the NLRA is also not proper because whether the NLRA applies to the Nation turns on questions entirely outside the Board s expertise. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 143-44, 151 n.5 (2002); Op.Br. 13. The Board admits that whether the Act applies requires consideration of when Indian law precludes jurisdiction over a particular tribal employer, Bd.Br. 7, and concedes that its interpretation of Indian law is not entitled to deference. Id. at 10. The Board s interpretation of employer, 29 U.S.C. 152(2), is not entitled to deference either, as that issue requires consideration of threshold questions of Indian law, and Indian tribes sovereign status. See infra at 4-7. Even if deference were otherwise due, the Indian canons of construction would trump its application. Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1461 (10th Cir. 1997). Finally, [t]he deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized 1 136808.1

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 11 assumption by an agency of major policy decisions properly made by Congress. Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 318 (1965). ARGUMENT I. CONGRESS DID NOT INTEND TO APPLY THE NLRA TO INDIAN TRIBES. A. Statutory Silence Does Not Make The NLRA Applicable To Indian Tribes. [F]ederal regulatory schemes do not apply to tribal governments exercising their sovereign authority absent express congressional authorization. Dobbs v. Anthem Blue Cross & Blue Shield, 600 F.3d 1275, 1283-84 (10th Cir. 2010). Under that rule, [s]ilence is not sufficient to... strip Indian tribes of their retained inherent authority to govern their own territory. San Juan, 276 F.3d at 1196. 1 See also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202 (1999) (silence in Minnesota enabling Act does not abrogate treaty rights); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987) (silence in diversity statute does not limit tribal civil jurisdiction). Thus to show that the NLRA does not apply to Indian tribes, language exempting them specifically is not necessary. Bd.Br. 12. The Board asserts that its power to prevent any person from engaging in any unfair labor practice under 29 U.S.C. 160(a), specifically to prevent an 1 The Board, not the Nation, Bd.Br. 30 n.13, has the burden of showing that the NLRA applies here. Id. at 1190; Cherokee Nation, 871 F.2d at 939. 2

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 12 employer from engaging in such conduct, subjects Indian tribes to the Act. Bd.Br. 12. But that contention simply begs the question, as Inyo County, California v. Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, 538 U.S. 701 (2003), demonstrates. There, the Court held that whether the Tribe was a person under 42 U.S.C. 1983 turned not upon a bare analysis of the word person, but on the legislative environment in which the word appears. Inyo, 538 U.S. at 711 (citations omitted). The Court held that the Tribe could not bring a 1983 action to protect its gaming enterprise s employment records because it was not a person under 1983 when acting in its sovereign capacity, emphasizing that the Tribe should be treated like a state. Id. at 708-12 & n.6. So too here. In this case, the Board s assessment of the word employer ignores the legislative environment in which it appears, as well as Indian tribes sovereign status and traditional tools of statutory construction, all of which reject its position. See infra at 4-7. The Board continues to rely on NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226 (1963) (per curiam), Bd.Br. 12, but that case only addressed whether a local fuel distributor s operations affect[ed] commerce under 29 U.S.C. 152(7). 371 U.S. at 224-26. The volume of activity that affect[s] commerce has nothing to do with whether a domestic sovereign is exempt from the Act under 152(2). Nor is that issue relevant in deciding whether applying the NLRA would interfere 3

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 13 with tribal sovereign authority, see Dobbs, 600 F.3d at 1283-84, or other rights of public importance, NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 500-01 (1979); McCulloch v. Sociedad Nacional de Marineros de Hond., 372 U.S. 10, 17, 22 (1963). In these instances, there must be present the affirmative intention of Congress clearly expressed. Catholic Bishop, 440 U.S. at 500 (quoting McCullough, 372 U.S. at 21-22). See Op.Br. 15-16. B. Traditional Tools Of Statutory Construction Confirm That The NLRA Does Not Apply To Indian Tribes. 1. Congress did not intend to apply the NLRA to Indian tribes. Applying traditional tools of statutory construction to the NLRA, which makes no reference to Indian tribes in its text or legislative history, establishes that Congress did not intend to apply it to Indian tribes. Op.Br. 18-24. 2 The Board counters that it has jurisdiction over Indian tribes engaged in gaming activities because it has jurisdiction over private sector entities that do so. Bd.Br. 12-13. 3 But Indian tribes are sovereigns, not private entities, United States v. Mazurie, 419 U.S. 544, 556-57 (1975), they conduct gaming in their sovereign capacity, infra at 8-10; Op.Br. 41-46, and Congress expressly declined to apply the NLRA to 2 If the NLRA were ambiguous, the Indian canons of construction would defeat its application to Indian tribes. Op.Br. 32-34. The Board s contrary assertion, Bd.Br. 23-25, is wrong. 3 The Board asserts that the Nation is, in literal terms, an employer, and should therefore be treated as such. Bd.Br. 13, 21-22. But Donovan v. Navajo Forest Products Industries, 692 F.2d 709, 711 (10th Cir. 1982), squarely rejects that argument. 4

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 14 domestic sovereigns even when they compete with the private sector. See Op.Br. 24-25. The Board has no authority to resurrect a proposal that Congress rejected. The 1947 amendments to the NLRA confirm that Congress never intended to apply the Act to Indian tribes. Op.Br. 30-31. The Board argues those amendments show only that the NLRA may not be enforced against an Indian tribe by a private party. Bd.Br. 22-23. But if Congress had viewed the NLRA as applicable to Indian tribes in 1947, it would have waived tribal immunity so that private parties could sue Indian tribes to enforce collective bargaining agreements. See generally LaPlante, 480 U.S. at 18. Ultimately, the Board offers no reason to treat Indian tribes differently from other domestic sovereigns under 29 U.S.C. 152(2). Neither the status under the Act of foreign-owned banks, or a non-profit religious organization, nor the Board s willingness to disclaim its own regulatory exemption for territories, Bd.Br. 20-21, justify treating Indian tribes differently from other domestic sovereigns. The other cases the Board cites to support its interpretation of 152(2) either construed other statutes or did not involve a domestic entity, Bd.Br. 15-16, and are thus inapposite. The Board also asserts that Congress knows how to exclude tribes from a statute when it wants to, Bd.Br. 16-17, but the statutes it cites show only that in other instances Congress did consider whether to apply a federal regulatory scheme to Indian tribes, and either exempted them or narrowly tailored the statute. 5

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 15 But Congress said nothing about Indian tribes in the NLRA. In these circumstances, tribes should be treated like other domestic sovereigns. See El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 487-88 (1999) (treating tribal courts like state courts under the Price-Anderson Act); Inyo County, 538 U.S. at 712 n.6. In San Juan, this Circuit did just that, rejecting the Board s argument that only states and territories could prohibit union security agreements under 29 U.S.C. 164(b), and holding that Indian tribes, though not mentioned in 164(b), could do so too. 276 F.3d at 1196-99. 4 The Board suggests this holding applies only at the level of major policy making units. Bd.Br. at 16 (quoting San Juan, 276 F.3d at 1197-98 (internal quotation marks omitted)). But San Juan establishes that Indian tribes are major policy making units, and they should be treated as such under 152(2). 2. Enactments before and after the NLRA reject the Board s position. The Board contends that interpreting the NLRA to apply to Indian tribes sub silentio is not inconsistent with the Indian Reorganization Act ( IRA ) and the Oklahoma Indian Welfare Act ( OIWA ) because under San Manuel Indian Bingo & Casino, 341 N.L.R.B. 1055 (2004), the NLRA applies only to commercial activities, not intramural functions. Bd.Br. 18 & n.7. The Board is wrong because 4 The Nation has enacted such a law, Chickasaw Nation Code 2-507, which was a stipulated document before the district court in the prior proceedings that ultimately led to this appeal. Stipulation as to Documents at 2, Chickasaw Nation v. NLRB, No. 5:11- cv-00506-w (W.D. Okla. filed May 10, 2011), ECF No. 38. See Op.Br. 2-3. 6

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 16 the main purpose of the IRA was to enhance tribal self-government politically and economically, Op.Br. 29 (citation omitted) (emphasis added), and the OIWA extended that same policy to Indian tribes in Oklahoma, id. at 28-29. The Board also argues that when the NLRA was enacted, Congress may have thought that a general statute would apply to Indian tribes without express authorization because the Supreme Court had applied general statutes to individual Indians without such authorization. Bd.Br. 18-19. That assumption cannot be squared with the legislative history of the NLRA, which does not even mention Indian tribes. 5 II. THE BOARD S SAN MANUEL TEST IS CONTRARY TO FEDERAL LAW. The Board s San Manuel test relies on FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960), to apply the NLRA to Indian tribes, and Donovan v. Coeur d Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985), to provide the only exceptions to its applicability. Bd.Br. 27-28. 6 But Tuscarora has no application here and the Coeur d Alene exceptions are contrary to federal law. 5 The law then in effect held that an intention to alter, and pro tanto abrogate, [a] treaty, is not to be lightly attributed to Congress, United States v. Payne, 264 U.S. 446, 448 (1924), and that tribal inherent sovereign authority was retained unless it was the subject of a treaty grant, United States v. Winans, 198 U.S. 371, 381 (1905), or explicit congressional direction. Keeble v. United States, 412 U.S. 205, 209-10 (1993) (citing Ex parte Crow Dog, 109 U.S. 556 (1883)). 6 The Board claims that overruling Fort Apache Timber Co., 226 N.L.R.B. 503 (1976), in San Manuel was its prerogative. Bd.Br. 15 n.4. But the San Manuel decision is not due 7

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 17 A. Tuscarora Is Inapplicable Because The Nation Conducts Gaming In The Exercise Of Its Sovereign Authority. Tuscarora does not apply where the matter at stake is a fundamental attribute of sovereignty and a necessary instrument of self-government and territorial management... [which] derives from the tribe s general authority, as sovereign, to control economic activity within its jurisdiction. San Juan, 276 F.3d at 1200 (quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982)). 7 As the Nation conducts gaming under its sovereign authority, Op.Br. 41-46, Tuscarora has no application here. The Board contends that Indian gaming is not governmental at all. Bd.Br. 48-49. But Indian tribes are sovereign entities. United States v. Wheeler, 435 U.S. 313, 322-23 (1978). And in enacting IGRA, Congress authorized Indian tribes, defined as entities that are recognized by the Secretary of the Interior and possess[] powers of self-government, 25 U.S.C. 2703(5)(A)-(B), to operate deference for the reasons shown supra at 1-2. And in any event, the Board has failed to show that the San Manuel test is permissible under the statute, FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). See supra at 2-7, infra at 8-19. Nor has the Board provided an adequate basis for overruling Fort Apache. The Board there held that the Tribe was exempt as a governmental entity recognized by the United States, to whose employees the Act was never intended to apply. 226 N.L.R.B. 503, 506 n.22 (1976). San Manuel ignores that holding, and now bases its interpretation of the NLRA on the Tuscarora decision, which did not involve the NLRA, and was decided 16 years before Fort Apache. 7 The Board suggests that later Circuit cases reject the speculat[ion] in the earlier cases that Merrion had overruled Tuscarora. Bd.Br. 31-32. As shown in text above, San Juan rejects that suggestion. 8

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 18 gaming as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments, 25 U.S.C. 2702(1), and generating tribal governmental revenue, id. 2701(1). Congress also recognized that Indian tribes have exclusive sovereign responsibility to regulate Indian gaming, id. 2701(5), and required that such regulation must be adequate to shield it from organized crime, id. 2702(2). It is therefore indisputable that Indian tribes conduct Indian gaming in the exercise of their sovereign authority. See also California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216, 218-19 (1987) (Indian gaming furthers the congressional goal of Indian self-government, and is essential to tribal self-government because it provides revenues for the operation of the tribal governments and the provision of tribal services. ); Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Okla. Tax Comm n, 829 F.2d 967, 982 (10th Cir. 1987) (Indian tribes conducting gaming are engaged in the traditional governmental function of raising revenue... [and] are thereby exercising their inherent sovereign governmental authority. ) Contrary to the Board s contention, Bd.Br. 48, employing non-indians does not somehow make Indian gaming any less of a governmental activity. See Op.Br. 46. An Indian tribe exercises inherent sovereign power over nonmembers who enter consensual relationships with the tribe, Montana v. United States, 450 U.S. 544, 565-66 (1981), and IGRA s legislative history shows that Congress 9

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 19 determined that IGRA was not to interfere with the tribes exercise of sovereign authority over the employment of gaming personnel. Op.Br. at 43. 8 The Board also argues that Tuscarora applies when a tribe is acting in a proprietary capacity. Bd.Br. 35-37. But San Juan establishes that Tuscarora does not apply when the federal statute at issue would impact tribal legislative policy, especially in employment matters. In San Juan, the Tribe had enacted a right to work ordinance and entered into a lease that contained similar provisions. 276 F.3d at 1190. This Court held that the sovereignty question was dispositive and that Tuscarora was inapplicable because applying the NLRA would affect tribal legislative policy. 276 F.3d at 1200. So too in Dobbs, where the question presented arose under a tribal employee insurance plan, this Court held Tuscarora inapplicable because applying ERISA would interfere with tribal sovereign authority to regulate economic activity within their own territory. 600 F.3d at 1284 (quoting San Juan, 276 F.3d at 1192-93). Moreover, Tuscarora does not apply when the tribe s sovereign authority is secured by treaty, again even in employment matters. Cherokee Nation, 871 F.2d at 938 n.3; Navajo Forest, 692 8 When IGRA was adopted in 1987, the Board had been treating Indian tribes as exempt from the NLRA for nearly fifty years and had formally adopted that position in Fort Apache, 226 N.L.R.B. at 506 n.22, making it unnecessary for Congress to visit the issue in IGRA. Indeed, the Board reaffirmed Fort Apache the year after IGRA was enacted. S. Indian Health Council, 290 N.L.R.B. 436, 437 (1988). 10

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 20 F.2d at 711; Dobbs, 600 F.3d at 1294 (Briscoe, J., concurring in part and dissenting in part). The Board asserts that this Circuit regularly presumes the applicability of general federal laws to Indian tribes, Bd.Br. 28, but the cases it cites do not support that assertion. United States v. Fox, 573 F.3d 1050, 1055 (10th Cir. 2009), applied a federal criminal statute to an individual Indian, not a tribe; San Juan rejects the applicability of Tuscarora, 276 F.3d at 1200; and Phillips Petroleum Co. v. EPA, 803 F.2d 545, 556 (10th Cir. 1986), concerned tribally supported groundwater regulation by EPA. The Board also asserts that cases from other Circuits have relied on Tuscarora to conclude that general federal laws presumptively apply to Indian tribes. Bd.Br. 27-28. But those cases were all decided before Dobbs and San Juan, which hold that Tuscarora only applies to an Indian tribe s exercise of its property rights, not its exercise[s] [of] its authority as a sovereign. Dobbs, 600 F.3d at 1283 n.8 (quotation omitted). And the cases that the Board cites were either found inapposite in San Juan, 276 F.3d at 1199, or held Tuscarora to be inapplicable, EEOC v. Fond du Lac Heavy Equip. & Constr. Co., 986 F.2d 246, 248 (8th Cir. 1993), or involved the application of a federal tax to individual Indians. 11

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 21 Finally, Tuscarora is inapplicable because the NLRA is not a general federal law. San Juan, 276 F.3d at 1199. The Board asserts this holding applies only to 164(b). Bd.Br. 29-30. But the San Juan Court found thus the NLRA is not a general federal law because the 164(b) exemption showed that Congress did not intend inclusion within its general ambit as the norm, 276 F.3d at 1199 (quoting Smart v. State Farm Ins. Co., 868 F.2d 929, 933 (7th Cir. 1989)), and that conclusion applies with even greater force to the broader exemption in 152(2). The Board insists that other circuits have held the NLRA is a general federal law, Bd.Br. 28-29, but in NLRB v. Chapa De Indian Health Program, Inc., 316 F.3d 995 (9th Cir. 2003), the Court cautioned it was in no way resolving the issue of the Board s jurisdiction and held only that judicial intervention prior to the NLRB s own determination of its jurisdiction is inappropriate. Id. at 1002. As for Navajo Tribe v. NLRB, 288 F.2d 162 (D.C. Cir. 1961), the D.C. Circuit decided only that the NLRA applied to a non-indian corporation, not to a tribe. The other cases the Board relies on did not even involve the NLRA. Bd.Br. at 29 n.12. B. The Coeur d Alene Exceptions In The Board s San Manuel Test Are Contrary To Federal law. The Board s Coeur d Alene exceptions are contrary to the law of this Circuit. The Board asserts otherwise, relying on its contention that this Circuit follows Tuscarora. Bd.Br. 31. That argument fails for the reasons stated supra at 8-11. The Board s reliance on Nero v. Cherokee Nation of Oklahoma, 892 F.2d 12

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 22 1457 (10th Cir. 1989), and Cherokee Nation does not help it, either; in the former decision, this Circuit found that a generally applicable rule did not apply to the tribe as a sovereign, San Juan, 276 F.2d at 1199 n.11; and in the latter, the Board concedes this Circuit rejected Tuscarora s application. Bd.Br. 31. The arguments the Board offers in support of each Coeur d Alene exception fare no better. 1. Tribal rights of self-government are not limited to intramural matters. The Board asserts that the first Coeur d Alene exception for exclusive rights of self-government in purely intramural matters, Bd.Br. 30, protects only the untouchable core of tribal sovereignty by focusing on intramural selfgovernment. Bd.Br. at 32. But as the Board s intramural classification is drawn from the common law, Congress is free to make its own determination of whether Indian gaming is an exercise of the right of self-government, regardless of how the Coeur d Alene court might view that question. United States v. Lara, 541 U.S. 193, 205 (2004). Here Congress has determined that Indian gaming is an exercise of tribal self-government. See supra at 8-10. Furthermore, confining tribal rights of self-government to activities deemed intramural under Coeur d Alene is contrary to settled federal law, for tribal rights of self-government have long extended to matters involving non-indians. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832) (non-indians may enter Cherokee Nation with the assent of the Cherokees ); Merrion, 455 U.S. at 141 (inherent power to tax non-indians); 13

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 23 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335 (1983) (inherent power to manage the use of [tribal] territory and resources by both members and nonmembers ); Indian Country, U.S.A., 829 F.2d at 982 (gaming involving non- Indians is an exercise of tribal inherent sovereign governmental authority ) (citations omitted). Applying the NLRA to the Nation would interfere with these settled rights. Infra at 24-28. 9 The Board also recycles its argument that this Circuit s cases addressing the proprietary-sovereign distinction support the first Coeur d Alene exception, Bd.Br. 35-36, but that argument is rejected supra at 10-11. The Board also relies on other circuits cases, Bd.Br. 33-35, but none concerned Indian gaming or the NLRA, with the exception of the D.C. Circuit s decision in San Manuel. But that decision is directly contrary to Dobbs and San Juan, see supra at 2, though even the D.C. Circuit declined to adopt Coeur d Alene. Bd.Br. 35. Finally, the Board argues that the intramural matters exception is more nuanced than a simple commercial-governmental dichotomy. Bd.Br. 36-37. But it is not. San Manuel, 341 N.L.R.B. at 1063 (rejecting first exception because the casino is a typical commercial enterprise ). And the commercial-governmental 9 The Chickasaw Nation has long engaged in commerce with non-indians. On their ancestral lands, the Nation traded commodities like grain, livestock and cotton. Arrell Gibson, The Chickasaws 147 (1971). After their removal to Oklahoma, the Chickasaw continued trading, and sold agricultural goods to western-immigrating settlers. Grant Foreman, The Five Civilized Tribes 101, 111 (1934). 14

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 24 test is unworkable, see Op.Br. 25-26, as this case shows. Congress and the federal courts have expressly held that Indian gaming is a governmental activity, supra at 8-9, yet the Board insists otherwise, claiming authority under a statute that says nothing about Indian tribes and applying a distinction that Congress rejected. See supra at 4-5. And while the Supreme Court has indeed suggested that the commercial-governmental distinction might be appropriate in another setting, Bd.Br. 37 (citing Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 757-58 (1998)), the Court held that such a decision was for Congress alone to make, Kiowa, 523 U.S. at 759. Congress made no such decision here. 2. The Board s assertion that general treaty rights afford no protection for tribal self-government has no merit. The Board asserts that the second Coeur d Alene exception for treaty rights does not apply to general treaty rights. Bd.Br. 37-41. But all treaty rights, including those recognized only by general rule, are protected by the rule that congressional intent to abrogate treaty rights must be clear and plain. United States v. Dion, 476 U.S. 734, 738-39 (1985). Circuit law follows those rules. In Cherokee Nation, this Circuit held that application of the ADEA was barred because its enforcement would directly interfere with the Cherokee Nation s right of self-government under Article V of the Treaty of New Echota, Dec. 29, 1835, 7 Stat. 478, and the ADEA contained no clear indication of congressional intent to abrogate Indian sovereignty rights. 871 F.2d at 938-39. The Court based 15

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 25 that holding on Navajo Forest, where the application of OSHA was barred on two separate grounds: first, that its enforcement would violate the treaty right to exclude non-indians; and second, that doing so would dilute principles of tribal sovereignty and self-government recognized in the treaty. Id. at 938 (quoting Navajo Forest, 692 F.2d at 712). 10 The Cherokee Nation Court found the second ground sufficient. These rulings squarely reject the view that general rights afford Indian tribes no protection for their sovereignty. The Board also argues that treaties do not create tribal sovereign authority, and instead simply reserve tribal inherent sovereign authority. Bd.Br. 38. But treaty rights are a separate source of tribal power, distinct from inherent sovereign authority. Montana, 450 U.S. at 557-68. The Board also relies on U.S. Department of Labor v. OSHRC, 935 F.2d 182 (9th Cir. 1991) and Fond du Lac Heavy Equipment & Construction Co. Bd.Br. 38. But in the former case, the court simply held that the Warm Springs Tribe s treaty right of exclusion did not bar OSHA because it was identical to the Coeur d Alene Tribe s inherent right of exclusion, which did not do so. OSCHR, 935 F.2d at 186. 11 In the latter case, the court found that Fond du Lac s inherent right of self-government was analogous to 10 While the Board seeks to distinguish Cherokee Nation as a case involving a tribal subdivision performing governmental functions, Bd.Br. 40, the decision turns on Navajo Forest, which involved a tribal enterprise. 692 F.2d at 710. 11 The Court also acknowledged that its decision was contrary to Navajo Forest. OSCHR, 935 F.2d at 185. 16

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 26 the Treaty right in Cherokee Nation. Fond du Lac, 984 F.2d at 249 n.4. These rulings do not construe any other rights. 12 The Board also relies on Chickasaw Nation v. United States, 208 F.3d 871 (10th Cir. 2000), aff d, 534 U.S. 84 (2001), but that case did not involve tribal sovereign authority to enact and enforce laws. San Juan, 276 F.3d at 1196-97. Instead, the Court considered whether the federal wagering and occupational excise taxes, 26 U.S.C. 4401, 4411, apply to an Indian tribe s sale of pull-tabs. The Court determined that (1) an Indian tribe was a person under those statutes, just as a state and the United States are persons under other provisions of the Internal Revenue Code, 208 F.3d at 879, (2) the Code specifically exempted Indian tribes from certain excise taxes that were also imposed on persons, id., and (3) a provision of IGRA that treated tribes like states for purposes of certain reporting and withholding purposes did not extend the states pull-tab tax exemption to Indian tribes because Congress had deleted language that would have done so in the final version of the bill that became IGRA, id. at 882-83. 13 The Court then considered whether the right to self-government held under Article 7 of the 1855 12 The Board relies on Solis v. Matheson, 563 F.3d 425 (9th Cir. 2009), but it involved the application of the FLSA to a store owned by individual Indians. Id. at 427. 13 In affirming the Tenth Circuit s ruling, the Supreme Court expressly stated that [t]he subject matter at issue also counsels against accepting the Tribes interpretation, as tax exemptions enacted by Congress are ordinarily explicit. Chickasaw Nation, 534 U.S. at 90. Tax cases are therefore an especially weak basis for constructing new general rules about implicit divestitures of tribal sovereign authority. 17

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 27 Treaty, June 22, 1855, 11 Stat. 611, barred application of the pull-tab taxes, found that the taxes only impact was to reduce the Nation s profits, and held (assuming arguendo that those taxes interfered with the right of self-government) that tribal treaty rights are subject to the federal government s authority to impose excise taxes upon a tribe and that more explicit treaty language would be required to change that result. Id. at 884-85. But no such circumstances are present here. The subject matter here is not federal tax exemption. The NLRA, unlike the Internal Revenue Code, makes no reference to Indian tribes. Indeed, Congress never even considered applying the NLRA to Indian tribes, much less considered and rejected an exemption for Indian tribes. And finally, application of the NLRA would have a devastating impact on the Nation s right to make its own laws and be ruled by them. See infra at 24-28. Chickasaw Nation is therefore inapposite. 3. Requiring proof that Congress intended the NLRA not to apply to Indian tribes violates federal law. Finally, in San Manuel the Board held that the third exception applies if there is proof in the statutory language or legislative history that Congress did not intend the law to apply to Indian tribes. 341 N.L.R.B. at 1059. That standard is satisfied here. See supra at 2-7. But the standard the Board actually applies requires the tribe to prove the negative, stating that a general federal statute will not apply to tribes where either the statute s legislative history, or something else, 18

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 28 proves a congressional intent not to apply the law to Indians on their reservations. Bd.Br. 41 (internal quotes omitted). That formulation is contrary to the law of this Circuit as shown supra at 2-7. III. APPLYING THE NLRA TO THE NATION WOULD ABROGATE ITS RIGHTS OF SELF-GOVERNMENT AND POWER OF EXCLUSION. A. The Nation s Treaties Protect It From Federal Laws That Would Interfere With Its Treaty Rights. The Board contends that the Nation s Treaty rights are too general to protect it from the NLRA, Bd.Br. 37-39 (citing Decision at 4-5 & n.7), 56-59. But settled law shows otherwise. Article 4 of the 1830 Treaty, Sept. 27, 1830, 7 Stat. 333, secures to the Nation the jurisdiction and government of all the persons and property that may be within their limits west, and protects the Nation s sovereignty from federal interference except to the extent that Congress under the Constitution [is] required to exercise a legislation over Indian affairs. 1830 Treaty, art. 4. These specific terms bar the application of the NLRA, which would interfere with the Nation s right of self-government and was plainly not enacted in the exercise of congressional power over Indian affairs. See Op.Br. 17-31. Article 4 is also analogous to Article V of the Cherokee Treaty, which barred the application of the ADEA in Cherokee Nation. 871 F.2d at 938 & n.2. 19

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 29 Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) confirms that the Nation s rights are not too general to bar application of the NLRA. The Court there held that Article 4 of the 1830 Treaty secured ownership of the Arkansas riverbed within the Treaty Territory to the Nation, notwithstanding that the parties... did not pause specifically to provide for ownership of the river bed. Id. at 633-36. In so holding, the Court rejected the state s equal footing doctrine claim, a general principle of federal law under which the United States holds the beds of navigable waters in trust for future states to ensure their admission on an equal footing with the established States, Montana, 450 U.S. at 551; cf. Bd.Br. 57. The exceptional force of the Nation s rights under the 1830 Treaty arises from its special historical origins, which show that it was aimed at rectifying their past suffering at the hands of the Federal Government and the States. Montana, 450 U.S. at 555 n.5 (reviewing the historical context of the 1830 Treaty). The 1830 Treaty did so by securing virtually complete sovereignty to the Nation, Choctaw Nation, 397 U.S. at 635 (citing Atl. & Pac. R.R. Co. v. Mingus, 165 U.S. 413, 435-36 (1897)), 14 [a]s a guarantee that they would not again be forced to move.... Id. at 625. In sum, the unique breadth of the Nation s rights under the 14 In Mingus the Court rejected the argument that the government was required to extinguish Indian title to land for a railroad because that land was held under Indian treaties, including specifically the 1830 Treaty. Mingus, 165 U.S. at 436-37. Cf. Br.Bd. 58. 20

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 30 1830 Treaty enhances, not diminishes, their force. In addition, while Choctaw Nation plainly shows that the 1830 Treaty remains in effect, the rights held under it were also expressly reaffirmed in the 1866 Treaty, Apr. 28, 1866, 14 Stat. 769. Chickasaw Nation v. Oklahoma ex rel. Okla. Tax Comm n, 31 F.3d 964, 978 (10th Cir. 1994) (holding that Articles 10 and 45 of 1866 Treaty reaffirmed the obligations of Article 4 of 1830 Treaty), rev d on other grounds, sub nom. Okla. Tax Comm n v. Chickasaw Nation, 515 U.S. 450, 462-71 (1995) (both majority and dissent relying upon 1830 Treaty, art. 4). The Board also argues that application of the NLRA is authorized by Article 7 of the 1866 Treaty. But Article 7 does just the opposite. By its terms, the Nation agrees only to legislation deem[ed] necessary by Congress and the President for the better administration of justice and the protection of the rights of person and property within the Indian Territory.... 1866 Treaty, art. 7. The NLRA has never been deemed such a law, as its silence with respect to Indians confirms. But even if it had, Article 7 would bar the NLRA s application if it would in anywise interfere with or annul their present tribal organization, or their respective legislatures or judiciaries, or the rights, laws, privileges, or customs of the Choctaw 21

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 31 and Chickasaw Nations. Id. The Board ignores this proviso, which defeats its argument. 15 Article 7 s express terms make it unnecessary to consider the Board s broader allegation that the 1866 Treaty sharply increased the authority of the federal government relative to the Nation, due to the Nation s participation on the losing side of the war, and consistent with a contemporary trend increasing federal control and decreasing tribal autonomy. Bd.Br. 56-57 (citation omitted). But that contention is also wrong. The 1866 Treaty was negotiated to re-establish federaltribal relations, and re-affirm the Nation s Treaty rights. Early in the war, Congress had authorized the President to proclaim abrogated treaties with a tribe in actual hostility to the United States.... Act of July 5, 1862, ch. 135, 12 Stat. 528. Although the President never abrogated the Nation s previous treaties, see Garland s Heirs v. Choctaw Nation, 59 Ct. Cl. 768, 774 (1924) ( The President was further given authority to abrogate the treaties of tribes engaged in actual hostilities such as was the case with the Choctaw Nation during the Civil War, but he did not do so. ), the 1862 law remained in place at the end of the war. 15 The Board cites to Article 8, Bd.Br. 4, but that article only concerns the organization of an inter-tribal council of Indian Territory tribes; it has no application here. In any event, Article 8(4) expressly protects existing treaty stipulations. Id. 22

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 32 That cloud was lifted and the pre-war relationship between the Nation and the United States was restored in the 1866 Treaty, which expressly reaffirmed the obligations of the United States and the rights of the Nation under prior Treaties. Id. arts. 10, 45. Numerous courts have since interpreted the 1866 Treaty and like treaties of the time and concluded that the new treaties reaffirmed and continued pre-war treaty obligations, rather than limiting or proscribing them. See Mingus, 165 U.S. at 440 (1866 Treaties with Indian Territory tribes, including the Nation, made additional provisions for the exercise of legislative power by the several Indian nations, and contained additional guaranties for their legislative independence and self-government ); Morris v. Hitchcock, 21 App. D.C. 565 (D.C. Cir. 1903), aff d, 194 U.S. 384 (1904) (Chickasaw Nation s right to selfgovernment and power to exclude preserved by the Article 7 proviso); Crabtree v. Madden, 54 F. 426 (8th Cir. 1893) (Creek Nation s rights of self-government under the 1856 Treaty preserved by its 1866 Treaty). These cases foreclose the Board s revisionist interpretation of the 1866 Treaty as part of a trend of increasing federal authority. Nor can the Board simply dismiss caselaw affirming the Nation s power of exclusion under the 1855 and 1866 Treaties. Morris, 194 U.S. at 388-89 (citing 1855 Treaty, arts. 7, 14; 1866 Treaty, art. 8). That power includes the right to determine who may enter tribal territory and to impose conditions on the presence 23

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 33 of those who are permitted to enter. Merrion, 455 U.S. at 144. This right empowers the Nation to set the conditions on which nonmember employees are permitted to enter into Tribal Territory. The Board seeks to dismiss Morris as a case in which there was no conflict with federal law, but Morris is well-recognized as a case that illustrates the consensual relations exception to the general principle that tribal inherent sovereign authority does not extend to the activities of nonmembers. Montana, 450 U.S. at 565-66; Strate v. A-1 Contractors, 520 U.S. 438, 457 (1997). B. Applying The NLRA To The Nation Would Interfere With Its Treaty Rights Of Self-Government And Power Of Exclusion. The NLRA cannot be applied to the Nation because its application would interfere with the Nation s right of self-government and power of exclusion in the absence of clear congressional intent to abrogate those rights. Dion, 476 U.S. at 738. If the Nation s employees have the right to strike under 29 U.S.C. 157, the Nation s ability to generate revenue to operate its government and provide essential services would be in their hands not by virtue of a tribal decision, but under the terms of the NLRA. The Board argues that the strike threat is not substantial because under the NLRA, the Nation can negotiate a no-strike clause. Bd.Br. 54. But absent negotiation of a collective bargaining agreement under the NLRA the Nation would have no such protection. And in such negotiations, the 24

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 34 right to strike would confer enormous power on the union the Nation would have to meet its demands or fail to meet its governmental responsibilities to its citizenry. Furthermore, the Board would not be the negotiator, and success in negotiations is never certain. Subordinating the right of self-government to the right to strike in this manner abrogates the right of self-government. The Board also says the Nation can replace economic strikers, or lockout employees, and hire replacements during the lockout. Bd.Br. 54-55. That is easy for the Board to say, but to do this the Nation would have to shut down for as long as it took to fill those jobs, a lengthy process given the background and licensing requirements imposed by federal and tribal law. See 25 U.S.C. 2710(b)(2)(F); Chickasaw Nation Public Gaming Act, 507, 510 (AR14-G at 19-22). And while a long strike may favor management in the private sector, a sovereign s position becomes weaker the longer a strike continues, as its inability to generate revenue and fundamental governmental functions creates economic and political pressure. If the NLRA applies to the Nation, the Board would have authority to split the Nation s government into two parts, one composed of commercial enterprises, and the other of traditional tribal or government functions all as determined by the Board. San Manuel, 341 N.L.R.B. at 1062-63. And the Nation would be forced to operate its government under two legal regimes, one controlled by the NLRA, and the other by tribal law. Thus, although the Nation conducts its 25

Appellate Case: 13-9578 Document: 01019244769 Date Filed: 05/05/2014 Page: 35 gaming activities through its Division of Commerce, an agency within its Executive Branch, AR15 at 2, the NLRA would apply to and control those activities. These impacts would divest the Nation of its right of self-government, which includes the right to organize its government as it sees fit, Santa Clara Pueblo v. Martinez, 436 U.S. 49, 62-64 (1978), and to undertake and regulate economic activity, Mescalero, 462 U.S. at 335, through an entity of its choice. See generally Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1184 n.8 (10th Cir. 2010) (recognizing that Indian tribes have the right to engage in economic activity through a corporation chartered under section 17 of the Indian Reorganization Act, 25 U.S.C. 477, or tribal law). The Nation would also be stripped of its sovereignty by the collective bargaining process provided for under 157-159. The Board would have the power to create as many different bargaining units as it wanted to create under 159, and the Nation would be required to negotiate all terms and conditions of employment with each such unit under 158(d). Furthermore, the terms and conditions of employment are subject to broad interpretation by the Board. See Ford Motor Co. v. NLRB, 441 U.S. 488, 501 (1979) (requiring bargaining over food prices in vending machines and company cafeteria). The Board argues that the NLRA only regulates labor relations, and does not dictate any particular terms of employment (e.g., respecting alcohol testing or Indian hiring preferences). 26