For the next several weeks, I will be addressing a legal topic that arises from a real case that my firm has been handling. It discusses a very unique, and in many instances unfair, application of the law applying to a group of businesses that routinely violates peoples’ legal rights with absolute immunity: American Indian tribes.
I want to make it clear, I am not opposed to self-determination, cultural preservation, Indian self-governance or even the right of the Indian Nations to take money from anyone willing to gamble it away. What I am against is using the concept of national sovereignty to deny people their basic rights to safety and fair treatment. Ironically, Native Americans, themselves the subject of genocide and centuries of state-sponsored discrimination and civil-rights abuse, exempt themselves from adhering to any legal protections against discrimination and harassment on the basis of race, sex, sexual orientation, age, disability, etc.
There is a very dangerous and well-kept secret that lies behind the billion-dollar Indian gambling empire. What people don’t understand is that when you turn off the highway and pull into the parking lot of an Indian casino, you have left the state of California — and even the United States — and you have entered the land of a sovereign nation. Yep, that’s right, even though you are eating the same food, drinking the same booze, listening to the same music, using the same currency, working the same hours (if you are an employee), you are no longer protected by the laws of California or the United States.
As hard as it is to believe, even though you have not crossed through a traditional boarder, you have crossed into the twilight zone of tribal law. My hope is that those of you who travel to and spend your hard-earned money at Indian casinos understand that the risks you take are far greater than merely losing your paycheck — you lose many of your important rights.
Unfortunately, the only ones who know this are the people who come to me after they have been injured, discriminated against, harassed or otherwise harmed. It is only then that they learn about the concept of sovereign tribal immunity. My suggestion to anyone reading this: If you are going to gamble, spend the extra money to travel to Las Vegas.
As hard as it is to believe, you have greater rights there then you do at most Indian gaming facilities in California. The slogan for Indian gaming facilities should be — like Las Vegas’ catch phrase “What happens in Vegas stays in Vegas” — “What happens to you in this casino doesn’t matter.”
The case I will discuss over the next several weeks as an example is M.D. v. Cache Creek Casino Resort, owned and operated by the Yocha Dehe Wintun Nation, Yolo County case No. Cv12-2018. Our client, Mario, an employee of Cache Creek, claimed that throughout his employment, he was repeatedly subjected to offensive and explicit conduct based on race, sex and national origin, including being “dry humped” by his supervisor, having KKK photos emailed to him, being called a Nazi, being given the “Heil Hitler” salute, having to hear about his supervisor’s sexual acts and hearing customers being racially denigrated.
Mario complained and the casino, instead of investigating, sent him a “hurt feelings report” which read “we, as a company, take hurt feelings very seriously. If you don’t have a mommy that can give you a hug and make it all better, please let your supervisor know and we can provide you with a surrogate. If you need them, diapers, midol and a ‘blanky’ can also be supplied.”
Cache Creek’s complaint form further provided a check-the-box list of “9 Reasons” for “filing” a complaint. Among other things, the reasons provided to the plaintiff as cause for making a complaint included the following: “I am a p****,” “I am a queer,” “I am a little bitch,” “I am a cry baby,” and “I have woman like hormones.”
Mario complained repeatedly and escalated his complaints to Cache Creek’s chief operating officer and general manager, and its senior vice president of administration and hotel operations. They did nothing. When it got to be too much, Mario filed for workers’ compensation, which was denied without investigation. Mario was forced to quit and when he sought to bring suit, the Yocha Dehe Wintun Nation pleaded sovereign immunity and the state court threw the case out, leaving Mario with no recourse.
Next week, I will explain how this can happen here in California.