Last week, I discussed the relatively unknown fact that when you enter many Indian gaming facilities, you lose many of your rights that you enjoy under California and U.S. law.
We covered the case of M.D. v. Cache Creek Casinos, wherein M.D., an employee of Cache Creek, sued the casino and his supervisors for sexual and racial harassment. Specifically, the allegations were that he was called a Nazi, called a member of the KKK, touched inappropriately, etc. One manager spoke graphically about masturbation, oral sex and his own sexual prowess. Another male manager stated that a female co-worker “needs a dildo” because she was divorced.
Senior casino managers sent out an email April 16, 2009, stating, “Important tax reminder: Don’t forget to pay your taxes … Muchas gracias! 21 million illegal aliens are depending on you!” Other managers complained that tour busses were unloading “dirty Asians” who collected Social Security but did not work.
When M.D. complained, he was issued a “Hurt Feelings Report” asking him to identify whether his complaint was being made because he was a “p****,” “a queer,” “a little bitch” or a “cry baby.” When M.D. detailed his complaints, nothing was done and, instead, he suffered retaliation. Ultimately he quit and came to my firm, which handles discrimination and harassment claims (I hold the largest verdict in U.S. history for employment harassment) and we filed suit in Yolo County, where the casino is.
The Superior Court, at the request of Cache Creek, threw out the case, holding that Cache Creek was owned and operated by the Yocha Dehe Wintun Nation (formerly the Rumsey Indian Rancheria of Wintun Indians) and, therefore, the casino could not be sued under the doctrine of sovereign immunity. In other words, as an Indian nation, the U.S. and California courts had no power to sue unless that power was established by treaty or compact. As a result, M.D. was left with no job and no legal remedy.
Indian casinos are operated under a compact with the state. This is a form of agreement where in exchange for the right to operate gambling establishments (unlawful in California other than on certain sovereign Indian lands), the tribes agree to share revenues through applicable taxes and licenses with the state. In its compact with the state, the tribe agreed to “adopt and comply with standards no less stringent than federal laws and state laws forbidding employers generally from discriminating in the employment of persons to work for the Gaming Operation or in the Gaming Facility on the basis of race, color, religion, national origin, gender, sexual orientation, age, or disability.”
The compact stated that if a tribe failed to adopt such regulations, “The applicable state statute or regulation shall be deemed to have been adopted by the Tribe as the applicable standard.” The tribe never adopted any standard, and when sued by my firm for what would be a very serious case of harassment, it filed a motion to dismiss, stating that “put simply, an agreement to adopt particular standards does not constitute a consent by the tribe to be sued for an alleged violation of these standards.” As the U.S. Supreme Court has explained, “There is a difference between the right to demand compliance with state laws and the means available to enforce them.”
In short, the tribe said: Just because we agreed we would adopt the standard doesn’t mean we actually had to and, by the way, you can’t sue us in state or federal court as we are a co-equal nation over which you hold no power unless we have agreed to give it to you or have waived our right to sovereignty.
The Superior Court in Yolo County, adopting a long line of Indian sovereign immunity cases, agreed and dismissed the plaintiffs’ case not only against the casino but against the individual managers, holding that they, as employees of the casino, also enjoyed the immunity generally reserved for ambassadors and diplomats.
So, Cache Creek Casino will never be subject to any legal scrutiny of this conduct because it wrote a compact, signed by Gov. Gray Davis (later amended by Gov. Arnold Schwarzenegger), that did not contain any mechanism for enforcing employee rights.
Think about that the next time you decide to go to Cache Creek to spend your hard-earned money. The casino should have a huge sign at the employee entrance saying, “You have left the United States and the state of California — you have no rights under the anti-discrimination laws and your courts can’t touch us.”