A Battle Among Sovereigns: Partnering Federal Exhaustion and Infringement Principles to Safeguard Tribal Court Jurisdiction Over Labor and Employment Disputes

Since the shift in federal policy starting in the late 1960s towards Indian self-determination and self-government, Indian tribes have leveraged federal support to enter into a broad variety of commercial activities to fund their governments and community programs. Despite some of the earliest iterations of the policy of self-determination being a call to “break decisively with the past and to create the conditions for a new era in which the Indian future is determined by Indian acts and Indian decisions” and to uphold promises to provide tribes with “a standard of living comparable to that of other Americans,” tribes have been threatened with assaults on their authority to govern the employment relations within their enterprises. While recent debate has centered around the National Labor Relations Board (NLRB) overturning its long-held position that the National Labor Relations Act (NLRA) did not apply to tribal businesses because they were governmental entities, there had already been a circuit split regarding whether other federal labor and employment laws of general applicability applied to tribal enterprises. This article seeks to resolve this circuit split through the revamping of current legal frameworks within this area of the law. In Part II, I will discuss how tribal sovereignty has developed as a legal concept, as well as current and potential barriers to federal infringement on this sovereignty, such as sovereign immunity, the federal exhaustion doctrine, and the federal infringement doctrine. Part III will address the circuit split in more depth and discuss problems with some courts’ flawed reasoning. Part IV will propose that the federal exhaustion doctrine should be more stringently enforced before federal jurisdiction can be maintained, and that the federal infringement doctrine should underlie the jurisdictional part of the exhaustion doctrine analysis. Lastly, Part V will briefly conclude the paper with some closing remarks.