San Manuel Indian Bingo & Casino v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2006 Decided February 9, 2007

No. 05-1392

SAN MANUEL INDIAN BINGO AND CASINO AND
SAN MANUEL BAND OF SERRANO MISSION INDIANS,
PETITIONERS

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

UNITE HERE! AND
STATE OF CONNECTICUT,
INTERVENORS

Consolidated with
05-1432

On Petition for Review and Cross-Application of
Enforcement of an Order of the
National Labor Relations Board

Jerome L. Levine argued the cause for petitioners. With
him on the briefs were Lynn E. Calkins, Frank R. Lawrence, and
Todd D. Steenson.
 2

John H. Dossett, Charles A. Hobbs, Seth P. Waxman,
Edward C. DuMont, Richard A. Guest, George Forman, Dale
T. White, Kaighn Smith, Jr., and C. Bryant Rogers were on the
brief for amici Indian Tribes and Tribal Organizations in support
of petitioner and reversal of the NLRB’s judgment.

David A. Fleischer, Senior Attorney, National Labor
Relations Board, argued the cause for respondent. With him on
the brief were Ronald E. Meisburg, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Meredith L. Jason,
Attorney.

Richard G. McCracken argued the cause and filed the brief
for intervenor UNITE HERE! International Union.

Richard Blumenthal, Attorney General, Attorney General’s
Office for the State of Connecticut, and Richard T. Sponzo,
Assistant Attorney General, were on the brief for intervenor
State of Connecticut.

Before: GARLAND and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: In this case, we consider whether
the National Labor Relations Board (the “Board”) may apply the
National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (the
“NLRA”), to employment at a casino the San Manuel Band of
Serrano Mission Indians (“San Manuel” or the “Tribe”) operates
on its reservation. The casino employs many non-Indians and
caters primarily to non-Indians. We hold the Board may apply
the NLRA to employment at this casino, and therefore we deny
the petition for review.
 3

I

San Manuel owns and operates the San Manuel Indian
Bingo and Casino (the “Casino”) on its reservation in San
Bernardino County, California. This proceeding arose out of a
competition between the Communication Workers of America
(“CWA”) and the Hotel Employees & Restaurant Employees
International Union (“HERE”), each seeking to organize the
Casino’s employees. According to HERE’s evidence, the
Casino is about an hour’s drive from Los Angeles. It includes
a 2300-seat bingo hall and over a thousand slot machines. It
also offers live entertainment. HERE’s evidence further
suggests the Tribe actively directs its marketing efforts to non-
Indians, and the Board found that “many, and perhaps the great
majority, of the casino’s patrons are nonmembers who come
from outside the reservation.” San Manuel Indian Bingo &
Casino, 341 N.L.R.B. 1055, 1056 (2004). The Tribe does not
contract with an independent management company to operate
the Casino, and therefore many Tribe members hold key
positions at the Casino. Nevertheless, given the Casino’s size,
the Tribe must employ a significant number of non-members to
ensure effective operation. Id. at 1056, 1061.

The Casino was established by the San Manuel tribal
government as a “tribal governmental economic development
project,” id. at 1055, and it operates pursuant to the Indian
Gaming Regulatory Act of 1988 (“IGRA”), which authorized
gaming on tribal lands expressly “as a means of promoting tribal
economic development, self-sufficiency, and strong tribal
governments,” 25 U.S.C. § 2702(1). According to San Manuel’s
evidence, its tribal government consists of a “General Council,”
which elects from among its members a “Business Committee.”
The General Council includes all tribal members twenty-one
years of age or older. The record is not specific in regards to the
size of the Tribe, but the Tribe’s “Articles of Association” call
 4

for monthly meetings of the General Council, suggesting the
Tribe is relatively small. The record also does not indicate the
Casino’s gross annual revenues, but HERE submitted a
declaration indicating that, as of February 8, 2000, the Casino’s
website was advertising in regard to its bingo operation “Over
1 BILLION Dollars in Cash and Prizes awarded since July 24th,
1986.” Revenues from the Casino are used to fund various tribal
government programs and to provide for the general welfare of
Tribe members.

In the Tribe’s case, IGRA appears to have fulfilled its
purpose, as the Casino has markedly improved the Tribe’s
economic condition. The Tribe’s evidence indicates its one-
square-mile reservation consists primarily of steep,
mountainous, arid land, most of it unsuitable to economic
development. For many years, the Tribe had no resources, and
many of its members depended on public assistance. As a result
of the Casino, however, the Tribe can now boast full
employment, complete medical coverage for all members,
government funding for scholarships, improved housing, and
significant infrastructure improvements to the reservation. In
addition, according to the Tribe’s evidence, the tribal
government is authorized to make direct per capita payments of
Casino revenues to Tribe members, suggesting that improved
government services are not the only way Tribe members might
benefit from the Casino.

II

On January 18, 1999, HERE filed an unfair labor practice
charge with the Board. The charge asserted the Casino “has
interfered with, coerced and restrained employees in the exercise
of their [collective bargaining] rights, and has dominated and
discriminatorily supported the [CWA] by allowing CWA
representatives access to Casino property . . . , while denying the
 5

same—or any—right of access to representatives of the
Charging Party . . . .” HERE filed a second charge on March 29,
1999, making similar allegations. On September 30, 1999, the
Board’s Regional Director for Region 31 issued an order
consolidating the two cases, as well as a consolidated complaint.
The complaint alleged the Casino had permitted CWA: (1) to
place a trailer on Casino property for the purpose of organizing
Casino employees; (2) to distribute leaflets from the trailer; and
(3) to communicate with Casino employees on Casino property
during working hours. The complaint further alleged the
Casino’s security guards denied HERE equal access to Casino
employees.

The Tribe appeared specially, seeking dismissal for lack of
jurisdiction. The Tribe asserted the NLRA does not apply to the
actions of tribal governments on their reservations. See Fort
Apache Timber Co., 226 N.L.R.B. 503 (1976). On January 27,
2000, the matter was transferred to the Board in Washington,
D.C., and on May 28, 2004, the Board issued a decision and
order finding the NLRA applicable.

The Board began by reviewing its past decisions regarding
application of the NLRA to tribal governments. 341 N.L.R.B.
at 1056-57. In Fort Apache, the Board had ruled the NLRA did
not apply to a tribal government operating a timber mill on
Indian land, finding the mill to be akin to a “political
subdivision” of a state government and therefore exempt. Fort
Apache, 226 N.L.R.B. at 506 n.22. This ruling would arguably
apply wherever the tribal government’s enterprise was located,
but in Sac & Fox Industries, Ltd., 307 N.L.R.B. 241 (1992), the
Board found the NLRA applicable to off-reservation tribal
enterprises. Id. at 242-43, 245; see also Yukon Kuskokwim
Health Corp., 328 N.L.R.B. 761, 763-64 (1999) (a case
involving an off-reservation healthcare facility operated by a
tribal consortium). Analyzing these precedents, the Board
 6

acknowledged reliance on two basic premises—that location is
determinative and that the text of the NLRA supported this
location-based rule—and found both flawed. 341 N.L.R.B. at
1057. First, the Board concluded that the NLRA applies to
tribal governments by its terms and that the legislative history of
the NLRA does not suggest a tribal exemption. Id. at 1057-59.
Next, the Board held federal Indian policy does not preclude
application of the NLRA to the commercial activities of tribal
governments. Id. at 1059-62.

In regard to the latter point, the Board cited the Supreme
Court’s statement in Federal Power Commission v. Tuscarora
Indian Nation, 362 U.S. 99, 116 (1960), that “a general statute
in terms applying to all persons includes Indians and their
property interests.” The Board noted several contexts in which
courts had followed Tuscarora and applied federal laws to
Indian tribes. 341 N.L.R.B. at 1059. In Donovan v. Coeur
d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985), for
example, the Ninth Circuit found the Occupational Safety and
Health Act applicable to a farm operated by a tribe and located
on the tribe’s reservation. The Coeur d’Alene court identified
only three exceptions to Tuscarora’s statement that federal
statutes apply to tribes. According to the Ninth Circuit, an
exception to this general rule is appropriate when: “(1) the law
touches ‘exclusive rights of self-governance in purely intramural
matters’; (2) the application of the law to the tribe would
‘abrogate rights guaranteed by Indian treaties’; or (3) there is
proof ‘by legislative history or some other means that Congress
intended [the law] not to apply to Indians on their
reservations . . . .” Id. at 1116 (alterations in original) (quoting
United States v. Farris, 624 F.2d 890, 893-94 (9th Cir. 1980)).
The Board adopted the Tuscarora-Coeur d’Alene framework in
this case, thus overruling the Fort Apache decision, 341
N.L.R.B. at 1060, and it concluded that none of the three Coeur
d’Alene exceptions applied and that therefore what it
 7

characterized as Tuscarora’s general rule was controlling, id. at
1063.

But the Board did not stop there. Having found the NLRA
applicable according to its terms, and having concluded federal
Indian law did not preclude application of the NLRA, the Board
considered as a matter of discretion whether to exercise its
jurisdiction in light of the need to “accommodate the unique
status of Indians in our society and legal culture.” Id. at 1062.
Here, the Board went beyond the Coeur d’Alene exceptions,
asking if the assertion of jurisdiction would “effectuate the
purposes of the [NLRA],” id., and noting that when a tribe “is
fulfilling traditionally tribal or governmental functions” that do
not “involve non-Indians [or] substantially affect interstate
commerce,” “the Board’s interest in effectuating the policies of
the [NLRA] is likely to be lower,” id. at 1063. The Board
considered the location of the tribal government’s activity (that
is, whether on or off the Tribe’s reservation) relevant but not
determinative. Id. Because here “the casino is a typical
commercial enterprise [that] employs non-Indians[] and . . .
caters to non-Indian customers,” id., the Board found the
exercise of jurisdiction appropriate, id. at 1063-64.

Failing in its effort to obtain a dismissal of the complaint,
the Tribe filed an amended answer, admitting the key factual
allegations and again denying the applicability of the NLRA.
The Board’s general counsel then moved for summary
judgment, and the Board granted the motion. The Board
reaffirmed its jurisdictional determination and, based on the
Tribe’s factual admissions, found an unfair labor practice in
violation of the NLRA. The Board issued a cease-and-desist
order requiring the Tribe to give HERE access to the Casino and
also to post notices in the Casino describing the rights of
employees under the NLRA. The Tribe petitioned for review,
and the Board filed a cross-application for enforcement of its
 8

order.

III

Several factors make resolution of this case particularly
difficult. We have before us conflicting Supreme Court canons
of interpretation that are articulated at a fairly high level of
generality. In addition, the NLRA was enacted by a Congress
that in all likelihood never contemplated the statute’s potential
application to tribal employers, and probably no member of that
Congress imagined a small Indian tribe might operate like a
closely held corporation, employing hundreds, or even
thousands, of non-Indians to produce a product it profitably
marketed to non-Indians. Further, the casino at issue here,
though certainly exhibiting characteristics that are strongly
commercial (non-Indian employees and non-Indian patrons), is
also in some sense governmental (the casino is the primary
source of revenue for the tribal government). Finally, out-of-
circuit precedent is inconsistent as to the applicability of general
federal laws to Indian tribes.

The gravitational center of San Manuel’s case is tribal
sovereignty, but even if we accept the paramount significance of
this factor, our resolution of the case depends on how the
Supreme Court and Congress have defined the contours and
limits of tribal sovereignty. Our central inquiry is whether the
relation between the Tribe’s sovereign interests and the NLRA
is such that the ambiguity in the NLRA should be resolved
against the Board’s exercise of jurisdiction. By focusing on the
sovereignty question and addressing it first, we find the statutory
interpretation question resolves itself fairly simply. Thus, we
analyze this case in two parts: (1) Would application of the
NLRA to San Manuel’s casino violate federal Indian law by
impinging upon protected tribal sovereignty? and (2) Assuming
the preceding question is answered in the negative, does the
 9

term “employer” in the NLRA reasonably encompass Indian
tribal governments operating commercial enterprises?

A

When we begin to examine tribal sovereignty, we find the
relevant principles to be, superficially at least, in conflict. First,
we have the Supreme Court’s statement in Tuscarora that “a
general statute in terms applying to all persons includes Indians
and their property interests.” 362 U.S. at 116. In Tuscarora, the
Court applied this principle to permit condemnation of private
property owned by a tribal government, finding a general grant
of eminent domain powers applicable to the tribe. Id. at 118.
This Tuscarora statement is, however, in tension with the
longstanding principles that (1) ambiguities in a federal statute
must be resolved in favor of Indians, see County of Yakima v.
Confederated Tribes & Bands of the Yakima Indian Nation, 502
U.S. 251, 268-69 (1992); Montana v. Blackfeet Tribe of Indians,
471 U.S. 759, 766 (1985); Bryan v. Itasca County, 426 U.S. 373,
390-92 (1976); McClanahan v. Ariz. State Tax Comm’n, 411
U.S. 164, 176 (1973); Squire v. Capoeman, 351 U.S. 1, 6-7
(1956); City of Roseville v. Norton, 348 F.3d 1020, 1032 (D.C.
Cir. 2003), and (2) a clear expression of Congressional intent is
necessary before a court may construe a federal statute so as to
impair tribal sovereignty, see White Mountain Apache Tribe v.
Bracker, 448 U.S. 136, 143-44 (1980); Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 59-60 (1978). Moreover, Tuscarora’s
statement is of uncertain significance, and possibly dictum,
given the particulars of that case. Unlike the NLRA, the Federal
Power Act at issue in Tuscarora included a specific limitation
on eminent domain on Indian reservations. See 362 U.S. at 107
(noting that lands within a reservation could not be taken by
eminent domain unless the Federal Power Commission found
that the taking would “not interfere or be inconsistent with the
purpose for which such reservation was created or acquired”
 10

(internal quotation marks omitted)). This limitation supported
the inference that Congress intended in other circumstances to
include Indians within the Federal Power Act’s eminent domain
provision. See id. at 118 (“[The Federal Power Act] neither
overlooks nor excludes Indians or lands owned or occupied by
them. Instead, as has been shown, the Act specifically defines
and treats with lands occupied by Indians. . . . The Act gives
every indication that, within its comprehensive plan, Congress
intended to include lands owned or occupied by any person or
persons, including Indians.”).

As discussed above, the Board steered its way between
these various rules by following the Ninth Circuit’s lead in
Coeur d’Alene, 751 F.2d at 1116, which identified three
exceptions to Tuscarora’s general statement. The Board
concluded none of the exceptions applied, and therefore
Tuscarora’s general statement controlled. 341 N.L.R.B. at
1063. Because the Board’s expertise and delegated authority
does not relate to federal Indian law, we need not defer to the
Board’s conclusion. See, e.g., Hoffman Plastic Compounds, Inc.
v. NLRB, 535 U.S. 137, 143-44, 151 n.5 (2002); NLRB v.
Bildisco & Bildisco, 465 U.S. 513, 529 n.9 (1984); Southern S.S.
Co. v. NLRB, 316 U.S. 31, 46-47 (1942). Therefore, we decide
de novo the implications of tribal sovereignty on the statutory
construction question before us.

Each of the cases petitioners cite in support of the principle
that statutory ambiguities must be construed in favor of Indians
(as well as the cases we have found supporting the principle)
involved construction of a statute or a provision of a statute
Congress enacted specifically for the benefit of Indians or for
the regulation of Indian affairs. We have found no case in
which the Supreme Court applied this principle of pro-Indian
construction when resolving an ambiguity in a statute of general
application.
 11

With regard to the alternative principle relied on by
petitioners, that a clear statement of Congressional intent is
necessary before a court can construe a statute to limit tribal
sovereignty, we can reconcile this principle with Tuscarora by
recognizing that, in some cases at least, a statute of general
application can constrain the actions of a tribal government
without at the same time impairing tribal sovereignty.

Tribal sovereignty is far from absolute, as the Supreme
Court has explained:

Indian tribes are distinct, independent political
communities, retaining their original natural rights in
matters of local self-government. Although no longer
possessed of the full attributes of sovereignty, they remain
a separate people, with the power of regulating their
internal and social relations. . . .
....
As the Court . . . [has] recognized, however, Congress
has plenary authority to limit, modify or eliminate the
powers of local self-government which the tribes otherwise
possess.

Santa Clara Pueblo, 436 U.S. at 55-56 (citations and internal
quotation marks omitted). An examination of Supreme Court
cases shows tribal sovereignty to be at its strongest when
explicitly established by a treaty, see, e.g., McClanahan, 411
U.S. at 173-75, or when a tribal government acts within the
borders of its reservation, in a matter of concern only to
members of the tribe, see, e.g., White Mountain Apache Tribe,
448 U.S. at 144; Moe v. Confederated Salish & Kootenai Tribes,
425 U.S. 463, 480-81 (1976). Examples of such intramural
matters include regulating the status of tribe members in relation
to one another, see Fisher v. District Court, 424 U.S. 382, 387-
88 (1976); Unites States v. Quiver, 241 U.S. 602, 605-06 (1916),
 12

and determining tribe membership, see Santa Clara Pueblo, 436
U.S. at 71. Conversely, when a tribal government goes beyond
matters of internal self-governance and enters into off-
reservation business transaction with non-Indians, its claim of
sovereignty is at its weakest. Mescalero Apache Tribe v. Jones,
411 U.S. 145, 148-49 (1973). In the latter situation, courts
recognize the capacity of a duly established tribal government
to act as an unincorporated legal person, engaging in privately
negotiated contractual affairs with non-Indians, but the tribal
government does so subject to generally applicable laws. See,
e.g., Niagara Mohawk Power Corp. v. Tonawanda Band of
Seneca Indians, 94 F.3d 747, 753 (2d Cir. 1996); Gila River
Indian Cmty. v. Henningson, Durham & Richardson, 626 F.2d
708, 715 (9th Cir. 1980). The primary qualification to this rule
is that the tribal government may be immune from suit. See
Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998).

Many activities of a tribal government fall somewhere
between a purely intramural act of reservation governance and
an off-reservation commercial enterprise. In such a case, the
“inquiry [as to whether a general law inappropriately impairs
tribal sovereignty] is not dependent on mechanical or absolute
conceptions of . . . tribal sovereignty, but has called for a
particularized inquiry into the nature of the state, federal, and
tribal interests at stake.” White Mountain Apache Tribe, 448
U.S. at 145. The determinative consideration appears to be the
extent to which application of the general law will constrain the
tribe with respect to its governmental functions. If such
constraint will occur, then tribal sovereignty is at risk and a clear
expression of Congressional intent is necessary. Conversely, if
the general law relates only to the extra-governmental activities
of the tribe, and in particular activities involving non-Indians,
see generally Reich v. Mashantucket Sand & Gravel, 95 F.3d
174, 180-81 (2d Cir. 1996) (“[E]mployment of non-Indians
weighs heavily against [a] claim that . . . activities affect rights
 13

of self-governance in purely intramural matters.”), then
application of the law might not impinge on tribal sovereignty.
Of course, it can be argued any activity of a tribal government
is by definition “governmental,” and even more so an activity
aimed at raising revenue that will fund governmental functions.
Here, though, we use the term “governmental” in a restrictive
sense to distinguish between the traditional acts governments
perform and collateral activities that, though perhaps in some
way related to the foregoing, lie outside their scope.

Cases involving the application of state law to Indian
activities are also instructive. Generally speaking, state laws do
not apply to the activities of tribal Indians on their reservations.
California v. Cabazon Band of Mission Indians, 480 U.S. 202,
207 (1987). Nevertheless, the location of the activity is not the
only consideration the Supreme Court has applied in these cases,
and though the application of state law raises very different
issues and therefore these cases are not directly on point, we find
significant that the Court has defined tribal sovereignty in these
cases partly in terms of governmental functions. In Williams v.
Lee, 358 U.S. 217, 223 (1959), for example, the Court
determined Arizona state courts lacked jurisdiction over a
breach of contract action brought by a non-Indian against an
Indian, based on a sale that occurred on an Indian reservation.
In measuring the scope of tribal sovereignty, the Court
commented: “[T]he question has always been whether the state
action infringed on the right of the reservation Indians to make
their own laws and be ruled by them.” Id. at 220. If “essential
tribal relations” are at issue, then states may not intervene. Id.
at 219. The on-reservation location of the activity in question
was perhaps the primary consideration in the Court’s analysis,
id. at 223, but this consideration was expressly tied to preserving
tribal self-government, which the court defined in terms of the
right of Indians to be ruled by their own laws, id. at 220.
 14

The Supreme Court again considered the application of
state law to Indian activities in Organized Village of Kake v.
Egan, 369 U.S. 60 (1962). In that case, Alaska sought to apply
its state law to regulate certain fish traps operated by the
Thlinget Indians in non-reservation waters. Id. at 61-62. This
time, the Court sided with the state, permitting state regulation
of the tribal fish traps. After specifying several ways in which
tribal sovereignty had given way to state regulation, id. at 72-75,
the Court concluded “that even on reservations state laws may
be applied to Indians unless such application would interfere
with reservation self-government or impair a right granted or
reserved by federal law.” Id. at 75 (emphases added). Based on
this principle, the court held Alaska’s regulation of the tribe’s
exclusive fishing rights was permissible. Id. at 75-76.

The Supreme Court reaffirmed the same principle in
Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973). There,
the tribe operated a ski resort on land that was outside the tribe’s
reservation, though contiguous with reservation land. New
Mexico sought to impose a tax on the gross receipts of the
resort. The Court concluded: “[S]tate laws may be applied [to
the activities of Indians and tribes] unless such application
would interfere with reservation self-government or would
impair a right granted or reserved by federal law.” Id. at 148
(emphasis added). Again, the fact that the tribal activity at issue
was off-reservation was a primary consideration in the Court’s
decision, id. at 148-50, but the Court emphasized “interfere[nce]
with reservation self-government” as the underlying issue.

In sum, the Supreme Court’s decisions reflect an earnest
concern for maintaining tribal sovereignty, but they also
recognize that tribal governments engage in a varied range of
activities many of which are not activities we normally associate
with governance. These activities include off-reservation
fishing, investments in non-residential private property, and
 15

commercial enterprises that tend to blur any distinction between
the tribal government and a private corporation. The Supreme
Court’s concern for tribal sovereignty distinguishes among the
different activities tribal governments pursue, focusing on acts
of governance as the measure of tribal sovereignty. The
principle of tribal sovereignty in American law exists as a matter
of respect for Indian communities. It recognizes the
independence of these communities as regards internal affairs,
thereby giving them latitude to maintain traditional customs and
practices. But tribal sovereignty is not absolute autonomy,
permitting a tribe to operate in a commercial capacity without
legal constraint.

Of course, in establishing and operating the Casino, San
Manuel has not acted solely in a commercial capacity. Certainly
its enactment of a tribal labor ordinance to govern relations with
its employees was a governmental act, as was its act of
negotiating and executing a gaming compact with the State of
California, as required by IGRA. See 25 U.S.C. § 2710(d)(3).
Moreover, application of the NLRA to employment at the
Casino will impinge, to some extent, on these governmental
activities. Nevertheless, impairment of tribal sovereignty is
negligible in this context, as the Tribe’s activity was primarily
commercial and its enactment of labor legislation and its
execution of a gaming compact were ancillary to that
commercial activity. The total impact on tribal sovereignty at
issue here amounts to some unpredictable, but probably modest,
effect on tribal revenue and the displacement of legislative and
executive authority that is secondary to a commercial
undertaking. We do not think this limited impact is sufficient to
demand a restrictive construction of the NLRA.

Therefore, we need not choose between Tuscarora’s
statement that laws of general applicability apply also to Indian
tribes and Santa Clara Pueblo’s statement that courts may not
 16

construe laws in a way that impinges upon tribal sovereignty
absent a clear indication of Congressional intent. Even applying
the more restrictive rule of Santa Clara Pueblo, the NLRA does
not impinge on the Tribe’s sovereignty enough to indicate a
need to construe the statute narrowly against application to
employment at the Casino. First, operation of a casino is not a
traditional attribute of self-government. Rather, the casino at
issue here is virtually identical to scores of purely commercial
casinos across the country. Second, the vast majority of the
Casino’s employees and customers are not members of the
Tribe, and they live off the reservation. For these reasons, the
Tribe is not simply engaged in internal governance of its
territory and members, and its sovereignty over such matters is
not called into question. Because applying the NLRA to San
Manuel’s Casino would not impair tribal sovereignty, federal
Indian law does not prevent the Board from exercising
jurisdiction. This conclusion is consistent with the conclusion
of several other circuits in regard to the application of federal
employment law to certain commercial activities of certain
tribes, although those cases resulted from the application of a
framework (Coeur d’Alene) different from the one we employ
here, and we do not decide how the framework we employ
would apply to the facts of those cases. See, e.g., Fla.
Paraplegic, Ass’n, Inc. v. Miccosukee Tribe of Indians, 166 F.3d
1126 (11th Cir. 1999) (holding ADA applied to restaurant and
gaming facility operated by an Indian tribe); Reich v.
Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996)
(applying OSHA to a tribe-operated construction business);
Dep’t of Labor v. Occupational Safety & Health Review
Comm’n, 935 F.2d 182, 184 (9th Cir. 1991) (applying OSHA to
a timber mill that a tribe operated on its reservation and noting
“[t]he mill employs a significant number of non-Native
Americans and sells virtually all of its finished product to non-
Native Americans through channels of interstate commerce”);
Smart v. State Farm Ins. Co., 868 F.2d 929 (7th Cir. 1989)
 17

(concluding ERISA applied to a health center operated by an
Indian tribe on its reservation). But see EEOC v. Fond du Lac
Heavy Equip. & Constr. Co., 986 F.2d 246 (8th Cir. 1993)
(holding ADEA did not apply to an on-reservation employment
discrimination dispute between a tribal employer and a tribe-
member employee).

B

The second question before us, whether the term
“employer” in the NLRA encompasses Indian tribal
governments operating commercial enterprises, requires a much
briefer analysis. The Board concluded the NLRA’s definition
of employer extended to San Manuel’s commercial activities.
Neither the text of the NLRA, nor any other reliable indicator of
Congressional intent, indicates whether or not Congress
specifically intended to include the commercial enterprises of
Indian tribes when it used the term “employer.” Therefore,
Congress has not “directly spoken to the precise question at
issue,” Chevron U.S.A. Inc. v. Natural Resources Defense
Council, 467 U.S. 837, 842 (1984), and the question is therefore
one Congress has implicitly delegated to the Board for
determination. Under these circumstances, the scope of our
review is limited, the matter falling under step two of Chevron’s
analytical diptych. Id. at 842-43; see also Yukon-Kuskokwim
Health Corp. v. NLRB, 234 F.3d 714, 717 (D.C. Cir. 2000)
(applying Chevron’s step two to the Board’s interpretation of the
term “employer” in the NLRA). Specifically, if the Board’s
interpretation is “a permissible construction of the statute,”
Chevron, 467 U.S. at 843, we must give that interpretation
“controlling weight,” id. at 844.

In enacting the NLRA, Congress “vest[ed] in the Board the
fullest jurisdictional breadth constitutionally permissible under
the Commerce Clause.” NLRB v. Reliance Fuel Oil Corp., 371
 18

U.S. 224, 226 (1963) (emphasis in original). Section 2(2) of the
NLRA defines “employer” in only very general terms, stating
agents of employers are themselves employers and then listing
certain specific entities that are not employers. 29 U.S.C.
§ 152(2). The NLRA never actually states descriptively what an
employer is, but by listing certain entities that are not
employers, the NLRA arguably intends to include everything
else that might qualify as an employer. See NLRB v. E.C. Atkins
& Co., 331 U.S. 398, 403 (1947) (stating “the Board, in
performing its delegated function of defining and applying the[]
terms” employer and employee “is not confined to” the
“technical and traditional concepts,” but “is free to take account
of the more relevant economic and statutory considerations”).
Black’s Law Dictionary defines employer as “[a] person who
controls and directs a worker under an express or implied
contract of hire and who pays the worker’s salary or wages.”
BLACK’S LAW DICTIONARY 565 (8th ed. 2004). Under this
generic definition of the term employer, we have no doubt it was
reasonable for the Board to conclude the Tribe is an employer of
its Casino workers. The Tribe does not suggest that it lacks
control over these workers, or that it has no contract of hire with
these workers, or that these workers are unpaid. Certainly, then,
the Tribe is an employer in the ordinary sense of that term;
indeed, the Tribe calls its Casino workers “employees” in its
briefs filed in this court. Thus, the Tribe does not seriously
contend it is not an employer; rather it contends it falls within
one of the NLRA’s listed exceptions.

Section 2(2) states that “[t]he term ‘employer’ . . . shall not
include the United States or any wholly owned Government
corporation, or any Federal Reserve Bank, or any State or
political subdivision thereof, or any person subject to the
Railway Labor Act, as amended from time to time, or any labor
organization.” 29 U.S.C. § 152(2). The Tribe asserts it falls
within the exception for “any State or political subdivision
 19

thereof,” calling this exception a “governmental exemption.”
Cf. NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002)
(tribal governments come within NLRA provision allowing
states to enact right-to-work laws); Reich v. Great Lakes Indian
Fish & Wildlife Comm’n, 4 F.3d 490 (7th Cir. 1993) (tribal
police come within FLSA exemption for the police of state and
local governments). The Tribe’s argument is certainly plausible,
but we cannot say the Board’s more restrictive reading of the
NLRA’s government exception is not “a permissible
construction of the statute,” Chevron, 467 U.S. at 843. The
exception is limited by its terms to state governments (and their
political subdivisions), and we can hardly call it impermissible
for an agency to limit a statutory phrase to its ordinary and plain
meaning. In short, the Board could reasonably conclude that
Congress’s decision not to include an express exception for
Indian tribes in the NLRA was because no such exception was
intended or exists.

San Manuel argues, however, that nothing in the legislative
history or text of the NLRA indicates a Congressional intent to
apply the NLRA to tribal governments. See NLRB v. Catholic
Bishop, 440 U.S. 490, 500 (1979) (in light of the constitutional
avoidance canon, finding church-operated schools exempt
because there was no indication of Congressional intent to
extend NLRA to such schools); McColloch v. Sociedad
Nacional de Marineros de Honduras, 372 U.S. 10, 20-22 (1963)
(in light of the “highly charged international circumstances”
surrounding the case, finding foreign-flag ships exempt from
NLRA because “for us to sanction the exercise of local
sovereignty under such conditions in this delicate field of
international relations there must be present the affirmative
intention of the Congress clearly expressed” (internal quotation
marks omitted)). This point is irrelevant in light of our
conclusion above that the NLRA does not impinge on the
Tribe’s sovereignty enough to warrant construing the statute as
 20

inapplicable. In the absence of a presumption against
application of the NLRA, the legislative history need not
expressly anticipate every category of employer that might fall
within the NLRA’s broad definition.

San Manuel also argues Congress intended, by enacting
IGRA, to give tribes and states a primary role in regulating tribal
gaming activities, including labor relations, and that Congress
therefore, by implication, foreclosed application of the NLRA
to tribal gaming. Among other things, IGRA requires tribes that
engage or intend to engage in “class III gaming” (the broad
category of gaming at issue here) to negotiate, enter into, and
comply with a compact between the tribe and the state in which
the gaming will occur. See 25 U.S.C. § 2710(d)(1)(C), (3)(A).
This tribal-state compact

may include provisions relating to—
(i) the application of the criminal and civil laws and
regulations of the Indian tribe or the State that are directly
related to, and necessary for, the licensing and regulation of
such activity;
(ii) the allocation of criminal and civil jurisdiction
between the State and the Indian tribe necessary for the
enforcement of such laws and regulations;
(iii) the assessment by the State of such activities in
such amounts as are necessary to defray the costs of
regulating such activity;
(iv) taxation by the Indian tribe of such activity in
amounts comparable to amounts assessed by the State for
comparable activities;
(v) remedies for breach of contract;
(vi) standards for the operation of such activity and
maintenance of the gaming facility, including licensing; and
(vii) any other subjects that are directly related to the
operation of gaming activities.
 21

Id. § 2710(d)(3)(C). The compact San Manuel entered into with
the State of California specifically addresses labor relations,
requiring San Manuel to adopt “an agreement or other procedure
acceptable to the State for addressing organizational and
representational rights of Class III Gaming Employees.” San
Manuel satisfied this requirement by enacting a detailed labor
relations ordinance, which differs substantively from the NLRA.

In addition, IGRA makes class III gaming activities lawful
on Indian lands only if authorized by a tribal ordinance or
resolution approved by the Chairman of the National Indian
Gaming Commission. Id. § 2710(d)(1)(A). To gain this
approval, the ordinance or resolution must include several
provisions, one of which is that

net revenues from any tribal gaming are not to be used for
purposes other than—
(i) to fund tribal government operations or programs;
(ii) to provide for the general welfare of the Indian tribe
and its members;
(iii) to promote tribal economic development;
(iv) to donate to charitable organizations; or
(v) to help fund operations of local government
agencies.

Id. § 2710(b)(2)(B).

San Manuel argues that IGRA, by authorizing tribes and
states to enter into compacts addressing labor-relations issues
and by mandating a tribal ordinance or resolution regulating
gaming activities, contemplates tribal and state control over
gaming and therefore implicitly restricts the scope of the NLRA.
Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
144 (2000) (a later-enacted, specific statute can “effectively
ratif[y]” a narrow construction of an earlier-enacted, general
 22

statute).

We think San Manuel reads too much into IGRA. IGRA
certainly permits tribes and states to regulate gaming activities,
but it is a considerable leap from that bare fact to the conclusion
that Congress intended federal agencies to have no role in
regulating employment issues that arise in the context of tribal
gaming. This is not a case in which Congress enacted a
comprehensive scheme governing labor relations at Indian
casinos, and then the Board sought to expand its jurisdiction into
that field. See id. at 126. We find no indication that Congress
intended to limit the scope of the NLRA when it enacted IGRA,
and certainly nothing strong enough to render the Board’s
interpretation of the NLRA impermissible. See Chevron, 467
U.S. at 843.

In sum, the Board has given the NLRA a natural
interpretation that falls within the range of interpretations the
NLRA permits, and regardless of whether we think the Board’s
decision wise, we are without authority to reject it. Id.

IV

Given that application of the NLRA to the San Manuel
Casino would not significantly impair tribal sovereignty, and
therefore federal Indian law does not preclude the Board from
applying the NLRA, and given that the Board’s decision as to
the scope of the term “employer” in the NLRA constitutes “a
permissible construction of the statute,” id., we uphold the
Board’s conclusion finding the NLRA applicable. In some
regards our analysis has differed slightly from that of the Board.
These differences do not, however, constitute an improper
usurpation of the Board’s decisionmaking prerogative, see SEC
v. Chenery Corp., 318 U.S. 80, 88-95 (1943), because the Board,
in reaching its ultimate conclusion, relied on the same factors we
 23

rely upon; specifically, that the Casino is a purely “commercial
enterprise,” 341 N.L.R.B. at 1055, that employs “significant
numbers of non-Indians and . . . caters to a non-Indian clientele”
who live off the reservation, id. at 1061. Moreover, the
differences between our analysis and that of the Board relate to
the application of federal Indian law, not to the Board’s
interpretation of the scope of the term “employer” in the NLRA.
Because Congress has not delegated questions of federal Indian
law to the Board, and because we agree with the Board’s
ultimate conclusion that federal Indian law poses no obstacle
here, we need not remand the matter.

V

The petition for review is denied, and the cross-application
for enforcement is granted.

So ordered.