The relationship between tribal businesses and the federal government is a turbulent one, featuring a constant fight for Native American tribes to have their status as independent nations recognized and for tribes to achieve the economic sufficiency that allows for successful governance. Yet, over time, the fight for tribal independence has been both supported and hindered by the federal government, depending on the prominent political culture and governing economic policy of the time.
One common theme in Native American law for nearly 200 years, however, is the refrain that tribes enjoy sovereign status, as recognized by the Supreme Court and the federal government. It is clear that tribal sovereignty has an immeasurable effect on the independence of tribes. Tribal sovereignty grants tribes the authority “to regulate conduct in their jurisdiction according to their own laws and principles and to adjudicate regulatory disputes in their own forums” without federal interference unless specifically authorized by Congress. Without unnecessary federal involvement, tribes can perform traditional government functions such as determining their form of government, passing and enforcing laws, establishing a court system, excluding non-Native members, and determining qualifications for membership.
The federal government has shown some support for tribal governance in these areas over the past two centuries, such as the deeding of reservation land to Native Americans in the 1880s and the passage of fundamental federal laws that promote tribal sovereignty from the 1960s to the 1990s. However, “[e]ven at its most supportive of” tribes, “federal . . . policies demand concessions from tribal governments.”
The federal government demands more when tribes have greater resources to offer. Exercising tribal sovereignty requires that tribes possess sufficient economic resources to fund traditional government services. Yet, it is this exercise of economic power that leads the federal government to push back against tribal sovereignty, requiring tribes to “engage in this balancing act[,] . . . protecting their tribal sovereignty while being active, influential actors in the American body politic.” In recent decades, tribes have discovered that investing in tribal gaming is their most powerful economic tool to promote sovereignty without federal support.
Despite the troubled relationship between tribes and the federal government, tribes have steadily grown in power over the past three decades by investing in tribal gaming. Formally beginning with the passage of the Indian Gaming Regulatory Act in 1988, tribal gaming is a modern “success story,” aiming to reduce tribal poverty, stimulate job growth, and improve the quality of life for Native Americans. While some tribes have seen minimal economic improvements, many tribes have achieved complete financial independence from the federal government through their gaming revenue—a radical sign of support for the tribal sovereignty movement. The impacts of tribal gaming were properly summarized by Kevin Washburn, the former Assistant Secretary of Indian Affairs at the US Department of the Interior: “Indian gaming is simply the most successful economic venture ever to occur consistently across a wide range of American Indian reservations.”
Despite this increase in tribal sovereignty, “one would [correctly] expect [that] the spaces where tribes make the greatest gains would become the sites where the federal government pushes back the strongest.” Undoubtedly, the rise of tribal gaming has raised new tensions between tribes and the federal government. The federal government continues to increase regulatory programming aimed at tribal gaming facilities. Therefore, federal regulation of tribal gaming is the key battleground in the modern fight to protect or dismantle tribal sovereignty.
The newfound applicability of the National Labor Relations Act (“NLRA”) to tribal governments exemplifies this ongoing tension. Although tribal governments have not been subject to the NLRA for seventy years and the NLRA definition of “employer” is silent regarding tribes, “insert [tribal gaming] into the picture and the [NLRB] flipped the law on its head so it could similarly flip its own precedent.” Most notably, the Ninth Circuit held in 2018 in Pauma v. NLRB that the NLRA did cover tribal gaming facilities, exacerbating the existing circuit split on the issue.
