How the Ninth Circuit Overruled a Century of Supreme Court Indian Jurisprudence - And Has So Far Gotten Away With It

Abstract:     
A three-judge panel of the Ninth Circuit U.S. Court of Appeals, in Donovan v. Coeur d'Alene Tribal Farm (1985) (Coeur d'Alene), applied the Occupational Safety and Health Act (OSHA) to tribal government employment, despite a total absence of statutory language or evidence of congressional intent supporting such an intrusion on tribal sovereignty. This Coeur d'Alene decision has emerged as a remarkably influential precedent over the last quarter century. Yet the Supreme Court has never endorsed it, and has indeed repeatedly rejected its fundamental premises. The Ninth Circuit claimed to find support for its approach in a passing statement in a 1960 Supreme Court opinion, Federal Power Commission v. Tuscarora Indian Nation, to the effect that there is a presumption that "a general [federal] statute in terms applying to all persons includes Indians and their property interests." Yet Tuscarora has long been viewed as a discarded relic of a now-discredited era of American Indian law.

Coeur d'Alene set forth three elements (so-called "exceptions" to Tuscarora's alleged "rule") under which a general federal law "silent on the issue of applicability to Indian tribes will NOT apply to them" ONLY: "(1) [if] the law touches exclusive rights of self-governance in purely intramural matters; (2) [if] the application of the law to the tribe would abrogate rights guaranteed by Indian treaties; or (3) [if] there is proof by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations...." By contrast, "longstanding principles" of American Indian law known as the "canons of construction" require, in relevant part, that "(1) ambiguities in a federal statute must be resolved in favor of Indians, and (2) a clear expression of Congressional intent is necessary before a court may construe a federal statute so as to impair tribal sovereignty."

The Indian law canons thus embody a presumption that federal laws should not be construed to limit tribal sovereignty or tribal rights unless Congress clearly, intentionally, and unambiguously chooses to do so: a presumption diametrically opposed to the Coeur d'Alene approach. Compare, for example, the third stated element of Coeur d'Alene, above, with the second quoted Indian law canon. While Coeur d'Alene's three elements are presented as "exceptions" (thus supposedly moderating the Tuscarora "rule"), in reality they operate as a single unified doctrine profoundly subversive of tribal sovereignty and the Indian law canons of construction. This is especially true of Coeur d'Alene's so-called "treaty exception."

Part I of this article summarizes why Coeur d'Alene is such a strange and paradoxical opinion. Part II discusses its remarkable influence. Part III lambastes its demonstrable wrongness. In conclusion, the article considers what might explain this phenomenon and where we may be headed. There are several striking aspects to Coeur d'Alene. First is how short the opinion is, a mere four pages from beginning to end. Second is the remarkable prestige that Coeur d'Alene has enjoyed as a lower court decision. Its doctrine has generally been endorsed by the Second, Seventh, Eighth, Eleventh, and D.C. Circuits, in addition to the Ninth Circuit. Only the Tenth Circuit has offered some wavering resistance. Coeur d'Alene has received prominent and respectful treatment in leading scholarly treatises on American Indian law. Third, Coeur d'Alene was just wrong. It flagrantly misconstrued and outright defied the governing precedents of the Supreme Court. And Supreme Court cases handed down since 1985 have only further underscored its egregious error.

Finally, Coeur d'Alene is striking because it was decided by the Ninth Circuit, the Rodney Dangerfield of federal courts. The Ninth Circuit just does not get much respect, especially from the Supreme Court in recent years. Headquartered in San Francisco on the popularly dubbed "Left Coast" of the United States, it is regarded by much of the legal community as being fundamentally out of step and out of favor with the increasing conservatism of the nation's highest court. In any other area of law, the idea that the Ninth Circuit could succeed in spearheading a major shift in legal doctrine, in flagrant defiance of the Supreme Court, and get away with it for almost a quarter-century now, would be a joke. But that is what has, in effect, happened with Coeur d'Alene.

This article grows out of a 2007 article by the same author dealing with the extension of the National Labor Relations Act (NLRA) to cover the on-reservation employees of American Indian tribes. See Wildenthal, "Federal Labor Law, Indian Sovereignty, and the Canons of Construction," 86 Oregon L. Rev. 413 (2007) (available at http://ssrn.com/abstract=970590). That application of the NLRA in derogation of tribal sovereignty was accomplished by the administrative and judicial fiat of the National Labor Relations Board and the D.C. Circuit, in the San Manuel cases. It has never been approved by Congress or the Supreme Court. Indeed, it is contrary to Supreme Court precedents and statutory policy choices by Congress that have molded the field of American Indian law for the past century. And it was justified in primary and effective reliance on the Ninth Circuit's Coeur d'Alene doctrine.

Keywords: American Indian law, tribal sovereignty, Native American, Indian Nations, Indian tribes, Ninth Circuit, federal labor law

JEL Classifications: K10, K31, K32

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