Tuesday, January 17, 2006

Sexual Harassment and Indian Casinos: Does Any Law Apply?

Fascinating article in Salon.com by Peter Byrne about a case concerning sexual harassment and other allegations by a group of women working at a tribal casino:

In a civil lawsuit filed in 2005 [Medina v. Station Casinos] with the Placer County Superior Court [California], [the]  women -- all former employees of Thunder Valley Casino -- allege gender and age discrimination, sexual harassment, wrongful termination, and violation of state and federal labor codes by casino management. A casino hostess, Sundi Lyons, claims she was raped by one of the Thunder Valley managers.

The article explores the relationship between federal and state antidiscrimination laws and the unique status of Indian nations as "domestic dependent nations." Generally, as part of a sovereign nation, Indian nations are exempt from much civil U.S. law and specifically, "Congress has ... exempted tribes from many state and federal regulations, including labor and antidiscrimination laws . . . . The idea behind [these] measures was to stimulate economic development on impoverished reservations."

Most recently, the women's lawsuit was dismissed by a state trial judge on sovereignty grounds, but the women's attorney plan to appeal to the California appellate court

Some excerpts from the article, "Taking on a nation":

When the stately doors of Thunder Valley Casino [Sacramento, Ca.] first swung open, says Elizabeth Ward, an energetic mother of two, working there was "all fun and games." Ward put in 10-hour days as the casino's beverage supervisor.

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One of Ward's jobs was to oversee the girls on the casino floor, which involved getting them fitted in black go-go boots with 2-inch soles and 4-inch heels, faux-leather black halters, and short-shorts with a metal ring hanging off an oversize zipper.

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The [EEOC] gave them the right to sue, but also told them it had no jurisdiction to investigate their claims themselves, because the casino is on Indian land, which is sovereign territory. Regina Brown, speaking for the [California] state agency, says pretty much the same thing . . . . California Department of Justice spokesperson Nathan Barankin explains that only the governor has the authority to initiate an investigation into whether sovereign Indian nations are violating the civil rights of employees.

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Attorney Howard Dickstein, the sole spokesman for Thunder Valley and the tribe on the lawsuit, says the tribe has its own anti-discrimination policies. “Casino policy prohibits sexual discrimination and harassment consistent with state laws," he says. While the tribe "is not subject to the same process as private employers," the tribe had an internal procedure for dealing with employee complaints, which he claims the women were aware of but did not follow.

The women claim, however, that they did follow the appropriate procedures but got nowhere.

This article and case raise some tough issues. On the one hand, Indian tribes certainly should have their national sovereignty protected and, of course, the United States does not go around forcing other sovereigns to abide by its employment discrimination laws.

But the attorney for the aggrieved women made some persuasive arguments, though ultimately not prevailing, to the trial court this past November.  First, because the tribe failed to protect the women's civil rights, should the tribe's sovereign immunity be trumped by the equal rights provided to all people by the constitutions of California and the United States?  Second, did the State of California ever intend for tribes to be able to use the tool of sovereignty to take away the civil rights of others? And third, and finally, is it not especially wrong to let a tribe's business partners hide behind Indian sovereignty?

PS

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Comments

The sovereign immunity which Indian tribes have is not the equivalent of being a truly separate and independent nation. Indians have full rights of American citizens when they leave the tribal land--that is unlike any foreigner who comes here from a foreign country. Further question: the tribe may be immune from suit under the employment discrimination laws--but would an individual be subject to a criminal charge by the State of California if he forcibly raped a woman on tribal land? (I note that one of the complainants claimed she was raped).

Posted by: Leroy Clark | Jan 17, 2006 2:05:02 PM

As someone who teaches and writes in both Employment Discrimination and Federal Indian Law, I found this article fascinating (I assigned the article to my Federal Indian Law class and we discussed it today).

To answer the previous post, due to a specific statute (known as P.L. 280), the state government of California has criminal jurisdiction for crimes committed on the reservation.

The article contains a number of inaccurate statements about the jurisdictional relationship between the Indian nations and Congress. Most importantly is that many powers of tribes were not granted to tribes by Congress but rather are powers that the tribes have possessed since pre-contact and Congress has not removed such powers.

I thought the most interesting issue is that the Nation has its own employment discrimination statute and procedures. It was unclear to me whether or not the procedures were followed. If the procedures are the standard "who can figure out what to do in what time frame/180days/300 days/what are they talking about" confusion, then I believe that the plaintiffs do not have much of a claim to an injustice. I should also note that the plaintiffs' attorney's argument that the Tribe's sovereignty has been trumped by the Constitution was rightfully rejected by the court as the Constitution does not apply to Indian tribes.

This is a rough one for me - deciding which side I support. Despite all I have argued to support sexual harassment plaintiffs in the past, I come down on the side of the tribe in this one. I think it is awful, horrible and wrong that women could be subject to such conditions in the workplace. But sovereignty is sovereignty. The Tribe's sovereignty should be respected. My concern is that this case, involving Vegas casinos and a small tribe, will result in legislation that will wholesale wipe out tribal sovereign immunity because Congress has that power.

Posted by: Ann Juliano | Jan 17, 2006 3:48:19 PM

I'm curious about the extent to which the 14th Amendment's EPC abrogates the tribal nation's sovereign immunity. In theory, the states' sovereign immunity is abrogated by the provisions of the 14th Amendment. To the extent the Supreme Court has expanded 11th Amendment sovereign immunity (Kimel, Garrett) and severely retracted the power to bring private suits under the 14th Amendment (Morrison, Kimel) for the states, how has it treated the issue of sovereign immunity for tribal nations? Also, Native Americans subject to tribal authority are not covered by the CRA of 1964, but rather the Indian CRA of 1968, which has subjected tribal nations to claims of gender discrimination (Santa Clara Pueblo v. Martinez). But the issue of tribal sovereignty has made the Indian CRA of 1968 difficult to enforce. Like Paul, I wonder whether any law applies to sexual harassment on tribal land?

Also, while I support tribal sovereignty, I am also troubled by the ability of the casinos and their business partners to "hide behind" tribal sovereignty. This is not the same as a tribe's right to determine which individuals qualify as members, or which individuals should benefit from the tribe's revenues on the basis said membership. So it doesn't apepar to be as much an issue of tribal sovereignty and self-determination as it is protecting the workers (who are non-Native) from sexual harassment.

Posted by: Dana Nguyen | Jan 17, 2006 4:21:30 PM

Im alittle confussed on all this sovereignty, I work in a casino in wiscosin. All i hear is you cant take law action agaisnt the native casinos, cuz they govern their own law. but this cant be true cuz at the casino i work at they adhere to state inservice laws, irs reporting laws, workmans comp laws, alcohol laws and criminal laws. So then why dont discrimanation laws apply? If St. Criox casino is its own nation then why do they adhere to these laws? If i worked i china ( its own nation ) then they wouldnt care a bout usa laws. Also they wouldnt be taking taxes for the usa. Does anyone see my point? Can anyone shed some light for me? thanx

Posted by: jay | Jul 21, 2006 10:50:24 AM

I was raped, repeatedly by my boss (an "enrolled member" in an indian tribe in California), and when I reported it, I was fired. It seems to me that we have a serious problem with sexual harassment within the indian casinos in our country; and worse, the very government that we entrusted to protect us from such horrific crimes, does nothing about it. So here we are, getting raped at work, in America, and this is ok? Why is nothing being done? Why do civilians get locked up for such crimes, while the indians walk free? What has happened to our society? Government officials, especially Governor Arnold, aka Benedict Arnold, what is wrong with you? You should be ashamed of yourself and the example you set in our country.

Posted by: DJ | Aug 11, 2007 2:45:50 PM

Has anyone noticed that in no state or local court do you ever see cases pending for stuff like, slip and fall work case injuries, ect. and for myself here in california ive seen no cases but know that settlement in the thousands have taken place in the casinos. Why the cover up?

Posted by: Don | Feb 25, 2008 12:57:34 AM

I have a sister that was just fired fot the second time at Thunder Valley Casino. The first time she was fired because of personal time off due to sexual harasment. She went into a depression. I called the Casino and threatened to notify the media and they hired her back. Then they worked her so hard that she fell and tore her rotator cuff and seperated her shoulder. It is so bad they she will be permenetly disabled from her current skill. They fired her again. She has no insurance now, and they do not pay into any wokers comp. I would like to find an attorney to take a civil action against the Thunder Valley Casino for all they have caused my sister. Can somebody help her? (916) 300-1789

Posted by: Ronda Butman | Oct 9, 2008 12:54:27 AM

The challenge is for tribal governments to set up tribunals in which due process is afforded casino employees, patrons and vendors. Sovereignty should not be used as a shield against sexual harassment litigation. In Indian country we truly respect our aunties and grandmothers and defending sexual harassment lawsuits with sovereign immunity does not live up to our own community standards.
We should have a zero tolerance policy on sexual harrassment and enforce this policy in tribal tribunals.

Posted by: Pauline Girvin | May 18, 2010 12:51:01 PM

I've read this article and I have also been sexually harassed in a casino in Oklahoma and the Management team didn't believe that my Manager did this to me, and after I reported him things went down hill from there, I wasn't fired I was treated badly by the man who touched me and the rest of Management team and then they finally moved me to another location. I really need some information to how I can do something about my rights, I have called so many lawyers in the state of Ok, and no one wants to take on a casino and all my rights were violated, the Human resource Manager told the Manager that I filed the complaint, I am really needing some advise and some help, Please if someone reads this you can contact me at..918 571 2965

Posted by: osti gurl | Dec 10, 2012 3:37:38 PM

I need help in this same situation . I can’t find an attorney that will take my case . Because it involves a tribe. Can some one please help me ?

Posted by: Sarita scoma | Feb 9, 2022 11:06:51 PM

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