Soaring Eagle Casino & Resort v. National Labor Relations Board, 791 F.3d 648

Background

Soaring Eagle Casino is owned/operated by the Saginaw Chippewa Indian Tribe on trust land within the Isabella Reservation; the Casino is a tribal-government subdivision, generates ~90% of tribal revenue, and employs ~3,000 people, mostly nonmembers.
The Tribe’s Associate Handbook contained a no‑solicitation rule (including union solicitation); nonmember employee Susan Lewis was suspended and later discharged for union solicitation.
The NLRB found the no‑solicitation policy and Lewis’s termination violated NLRA §§ 8(a)(1) and 8(a)(3), ordered reinstatement/back pay, and the Tribe appealed only the Board’s jurisdictional ruling.
The Sixth Circuit panel applied Chevron deference to the NLRB’s NLRA interpretation but reviewed de novo issues of Indian law (treaty and sovereignty questions), and was constrained by a prior Sixth Circuit decision (Little River) holding the NLRA applies to on‑reservation casinos.
The majority concluded it was bound by Little River and therefore enforced the Board’s order, but separately explained its preferred legal framework grounded in Montana/Hicks and would (on a clean slate) have held the NLRA did not apply to this tribal casino under the first Montana exception.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the NLRA apply to the Tribe’s on‑reservation casino?	Union/NLRB: NLRA is of general applicability and covers tribal employers operating commercial enterprises; Board has jurisdiction.	Tribe: Treaty language and tribal sovereignty exempt the Tribe; NLRA contains no clear statement abrogating treaty/sovereign rights.	Court: Bound by Sixth Circuit precedent (Little River) — enforced NLRB order; but majority explained it would have reached the opposite result under Montana/Hicks absent that precedent.
Do the 1855/1864 Treaties bar application of federal labor law?	Tribe: Treaty’s reservation of “exclusive use, ownership, and occupancy” preserves right to exclude and to condition entry/employment; treaties construed as Indians would understand them.	NLRB: Treaty language is a general right of exclusion insufficiently specific to abrogate generally applicable statutes; no congressional intent to abrogate.	Court: General treaty right to exclude alone is insufficient to bar generally applicable statutes like the NLRA.
Should Coeur d’Alene / Tuscarora framework govern analysis of general statutes applied to tribes?	NLRB/Some circuits: Use Coeur d’Alene (Tuscarora presumptions + three exceptions) to balance sovereignty and regulatory aims.	Tribe/other circuits: Coeur d’Alene relies on potentially dicta and understates Montana/Hicks; prefer Montana/Hicks framework focused on inherent sovereignty and two exceptions.	Court: Declined to adopt Coeur d’Alene as preferable analysis (favoring Montana/Hicks), but nonetheless applied Little River which used Coeur d’Alene, so enforced NLRB.
If Montana applies, does an exception prevent NLRA’s application here?	Tribe: Yes — first Montana exception (consensual commercial relationships) applies because casino is tribal government enterprise on trust land and employment is consensual.	NLRB: NLRA does not intrude on core tribal self‑government; Montana exceptions should be narrowly applied.	Court (majority on merits): On a clean slate would apply the first Montana exception and hold NLRA does not apply; but bound to enforce Board by precedent.

Key Cases Cited

Montana v. United States, 450 U.S. 544 (1981) (framework for tribal regulatory authority over nonmembers with two exceptions)
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) (tribal power to exclude includes conditioning entry and taxing economic activity)
Federal Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99 (1960) (general statutes presumptively apply to Indians absent conflict with treaty rights)
NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) (invalidating certain NLRB appointments; procedural impact on Board composition)
San Manuel Indian Bingo & Casino v. NLRB, 475 F.3d 1306 (D.C. Cir. 2007) (discussing Board jurisdiction over tribal casinos and Coeur d’Alene framework)
Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985) (Coeur d’Alene framework applying general‑statute presumption with three exceptions)
NLRB v. Little River Band of Ottawa Indians, 788 F.3d 537 (6th Cir. 2015) (Sixth Circuit panel holding NLRA applies to on‑reservation casino; binding precedent here)
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) (treaties interpreted as Indians would have understood; clear congressional intent required to abrogate treaty rights)
United States v. Dion, 476 U.S. 734 (1986) (Congress may abrogate treaty rights but must clearly intend to do so)
Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001) (consensual‑relationship exception requires nexus to the consensual relationship)
Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008) (land‑ownership status affects tribal regulatory authority)
Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014) (courts should not lightly assume Congress intends to undermine tribal self‑government)