People Against a Casino Town
News of Interest
Casinos Not Government
 
Court says sovereignty not a 'trump card'


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.

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.

Link to Decision: United States Court of Appeals, for the District of Columbia Circuit, Argued November 6, 2006
Decided February 9, 2007, No. 05-1392

------------------------------------

Broad implications seen for their casino workers
By James P. Sweeney
COPLEY NEWS SERVICE

February 10, 2007 Indian tribes must comply with federal labor laws, an appeals court ruled yesterday in a California case that could affect thousands of casino workers across the country.

The decision against one of the state's wealthiest tribes, the San Manuel band of San Bernardino County, also took another bite out of the immunity that tribes have long enjoyed as sovereign governments.

It was unclear how the ruling might affect an impasse between labor and five big Southern California tribes, including Sycuan of El Cajon and Pechanga of Temecula. The stalemate has blocked legislative ratification of expansive new gambling agreements that would authorize 22,500 more slot machines for the tribes.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit concluded that San Manuel operated its thriving casino as a commercial enterprise, rather than a government operation.

“The principle of tribal sovereignty in American law exists as a matter of respect for Indian communities. It recognizes the independence of these communities,” Janice Rogers Brown, a former California Supreme Court justice, wrote for the court. “But tribal sovereignty is not absolute autonomy, permitting a tribe to operate  in a commercial capacity without legal restraint,” Brown concluded.

Indian gaming has become a $23 billion industry nationally, with more than 400 casinos in 28 states. California alone has 58 casinos that employ 58,000 workers and gross more than $7 billion a year. Only a handful of California's casinos have labor agreements.

The appeals court ruling allows the National Labor Relations Board to hear allegations that San Manuel “interfered with, coerced and restrained employees” trying to exercise collective bargaining rights at the tribe's casino, which grosses more than $450 million a year.

A 1999 complaint filed by the Hotel Employees & Restaurant Employees International Union alleged that San Manuel denied its organizers equal access to casino workers while the tribe cooperated with a rival union, the Communication Workers of America. The tribe and the CWA ultimately agreed to a contract.

When the NLRB later concluded that federal labor law applied to the tribe, San Manuel appealed to the circuit court. The tribe invoked its sovereign immunity, contending that federal labor law did not apply to actions of tribal governments on their reservations.

The court said the case was “particularly difficult” because of “conflicting Supreme Court canons” relevant to the dispute. In addition, Brown wrote, the National Labor Relations Act “was enacted by a Congress that in all likelihood never contemplated the statute's potential application to tribal employers.”

Moreover, she added, “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 . . . marketed to non-Indians.”

Howard Dickstein, one of the state's leading tribal attorneys, said the decision, if it stands, could have broad implications and would reverse “many years of judicial precedent.”

“Traditionally, the courts said if Congress didn't expressly refer to tribes as included under a federal statute, then they were excluded,” he said. “Now they are saying the opposite.”

Dickstein believed the case was an ill-advised legal challenge, much like a powerful Palm Springs tribe's test of the state's ability to enforce California campaign and political disclosure laws against tribes. In December, a divided state Supreme Court ruled against the Agua Caliente band.

San Manuel was weighing its options yesterday. The tribe could ask the full court to reconsider the ruling or it could appeal to the U.S. Supreme Court.  “We are disappointed by the ruling,” San Manuel Chairman Henry Duro said in a statement. “We believe that these gaming projects help tribes to fulfill essential government functions by providing education, health care, housing, senior care and other key programs. “Those are basic governmental obligations that could be impacted by this decision.”

Jack Gribbon, the hotel and restaurant employee union's state political director, took a measured view of the legal victory. Any final decision is probably more than a year away, he cautioned.

“This is just a single moment in time that is not a final decision,” Gribbon said. “But I think it's a very good heads-up to those tribes in California . . . who have been unwilling to deal with workers' rights in a comprehensive way.”

Gribbon's union, now known as UNITE HERE, led the fight last summer that blocked new compacts for Sycuan, Pechanga, San Manuel, Agua Caliente and the Morongo tribe of Riverside County.

Those compacts, which are still pending before the Legislature, contain labor terms negotiated by former Gov. Gray Davis' administration in 1999. But UNITE HERE, backed by the California Labor Federation and other powerful unions, wants what is known as “card-check neutrality,” the ability to establish a union by collecting signatures from employees without interference from management.

Adam Day, a spokesman for Sycuan, said no one had ever tried to organize the tribe's casino workers.  “Organized labor has unprecedented rights under our tribal labor relations ordinance that they've never taken advantage of at Sycuan,” Day said. “So, in that respect, the decision doesn't change what labor has had the right to do for more than eight years at Sycuan, and yet they've never lifted a finger to take advantage of the ordinance.”

Gribbon has argued that the 1999 labor language does not adequately protect casino workers from harassment and intimidation by tribal employers. Yesterday's decision seemingly would bring federal protections to bear.

http://www.signonsandiego.com/news/state/20070210-9999-1n10tribes.html

Related Links:
PACT   SEARCH   FACTS   LAWSUIT   LINKS   NEWS   RESEARCH   ACTION