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August 30-September 5, 2006

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The Byrne Report

Station Loses

By Peter Byrne

Station Casinos of Las Vegas is in trouble. Indeed, the billion-dollar corporation that has partnered with the Federated Indians of Graton Rancheria to front one of its money pits in Sonoma County is on the ropes.

Most Californians now realize that we were hoodwinked when we amended the state constitution a few years back to allow impoverished Indian tribes to run card games, craps and slot machines on their balkanized reservations. Ordinary people thought it would be a good idea for the descendents of those whom European ancestors enslaved and murdered to make a few bucks snatching dollar bills from gamblers. Fifty-five monster casinos later (with 40 more in the works), Californians, including lots of Native Americans, are starting to seriously rethink the issue.

It was recently reported that our jobless Pomo neighbors, the Dry Creek Rancheria Indians, were tricked into moving off their mountaintop land to allow for the erection of a super ugly casino and parking garage. In fact, only 9 percent of California's Indians are getting any benefit at all from franchising their sovereign rights, such as they exist, to rich white guys handing out baubles.

One reason why the boys from Las Vegas are settling like locusts is because the legal doctrine of sovereign immunity has often been found by California courts to extend to white-owned firms that partner in business with Indian tribes and employ and serve tribal members on tribal land. But this doctrine--which was always based upon legal quicksand--faltered badly in 2004 when the National Labor Relations Board "reversed 30 years of precedent and extended its jurisdiction to on-reservation tribal commercial enterprises," according to a paper by the Sacramento-based law firm of DLA Piper Rudnick Gray Cary. That firm litigates to "preserve" Indian sovereignty on behalf of the gambling corporations that wish to operate with impunity from the fair-labor and discrimination laws that protect working people. But DLA Piper's client Station Casinos got slapped silly in the Placer County courthouse on Aug. 18. Superior Court Judge Charles Wachob ruled that the corporation that runs Thunder Valley Casino for the United Auburn Indian Community cannot hide from a civil lawsuit brought by employees.

Overturning its own ruling in November that the blanket of tribal sovereign immunity did extend to Station Casinos, the court ruled that, because of a twist of circumstance, the blanket is lifted. Station Casinos can now be pursued in state court by the seven women plaintiffs of Medina v. Station Casinos. They sued in 2004 to stop Thunder Valley Casino from allegedly sexually harassing female employees and allegedly practicing gender and age discrimination.

A linchpin of the women's lawsuit is that under the United Auburn Indian Community's gambling compact with the state, it was bound to protect the civil rights of employees by passing tribal ordinances "at least as stringent" as state and federal laws. More than a year after the women sued, the tribal council finally complied with this binding requirement of the compact

Oops. Here comes the catch-22. Judge Wachob decided that the proposed class action could now proceed against Station Casinos--which had previously been shielded by sovereign immunity--because "applying those laws to defendants would not impair the Tribe's interests in governing on its lands as the Tribe has committed itself to abiding by those laws." The court also found that Station Casinos may be considered as the de facto employer of the aggrieved women, since it is in charge of running the casino.

The new ruling undermines a widely accepted supposition that business partners of Indian tribes may violate the civil rights of employees at will. Moving beyond the requirements of the state compact, however, Indian nations do not have any such thing as sovereign immunity from federal laws.

Richard McCracken, an attorney for UNITE HERE, which organizes Indian casinos, recently explained why this is so in the journal The Labor Lawyer: "Indian tribes have some aspects of sovereignty, but these are frequently misunderstood and overstated. . . . The Constitution does not give Indian tribes any sovereign rights. . . . Such sovereign powers Indian tribes possess are limited to what is needed for self government."

McCracken quotes important case law: "The sovereignty that the Indian tribes retain is of unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance."

That means the every scrap of independence obtained by Indian peoples can be vaporized by an act of Congress, which is geared up to restrict reservation-shopping. With a political and legal backlash to the civil-rights-crushing imperatives of the Las Vegas carpetbaggers growing, Station Casinos and its brethren are on the run in California.

Contact Peter Byrne or send a letter to the editor about this story.