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Goldberg: States shouldn't use compacts to press special labor rules

The California Legislature recently ratified gaming compacts with four tribes (Agua Caliente, Morongo, Pechanga and Sycuan) that allow expansion of the tribes' gaming facilities in exchange for projected payments of hundreds of millions of dollars annually to the state. A deal that sweet for the state should have been an easy sell. But nearly a year passed before the agreement with Gov. Arnold Schwarzenegger received legislative approval.

The main holdup was a demand by the Hotel Employees and Restaurant Employees Union (United HERE!) that the compacts include provision for a certain form of union organizing. In particular, United HERE! wanted the workers' decision regarding union representation to be made by individual employees signing cards, rather than by a secret ballot. Now that the Legislature rejected their position, United HERE!, in league with race track interests, is threatening to put a measure on the state ballot to repudiate the compacts, an anti-tribal strategy they have tried before to no avail.

The California Legislature was correct in concluding that the compacts strike a reasonable balance between labor rights and respect for tribal sovereignty. Even labor sympathizers - and I count myself among them - should favor the labor provisions of these new compacts, despite the absence of a card check requirement.

As a general rule, unions are much more successful organizing by this ''card check'' process than through secret ballots. Some unions claim that secret ballots leave room for employer coercion, and some employers claim that card check organizing facilitates coercion by the unions. The four tribes' original compacts, in force since 1999, provide for union elections through secret ballots. Five other amended compacts that the governor signed in 2004 did require those other tribes to accept a union organized by the card check method. United HERE! wanted the newest compacts to follow the 2004 compact model rather than the 1999 model. The tribes protested that the union has not tried hard enough to organize using a secret ballot and that the choice of organizing method should be the tribes' to make, so long as federal labor law requirements are met.

Under the federal Indian Gaming Regulatory Act, California is required to negotiate with the tribes in good faith. That obligation has been imposed on the state because the tribes are federally recognized governments, and the casinos they operate are government enterprises supporting government functions such as schools, language revitalization efforts and health care. Tribal casinos are not private businesses. The fact that some tribes in 2004 accepted the card check requirement does not make it proper for California to insist on similar requirements for other tribes. Each Indian nation is a separate government, and it is not surprising that tribes would have varying views about the importance of their sovereignty in relation to labor organizing and other activities. In addition, three of the five tribes that agreed to the card check requirement in 2004 were already represented by unions, making the additional demand moot to them.

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Moreover, today unions have greater federal protection for their organizing efforts at tribal casinos than they did in 1999 or 2004. In a controversial decision that did not give due consideration to legal rules favoring tribal sovereignty, a federal appeals court determined, for the first time, that the National Labor Relations Act applies to workers at tribal casinos. Although the NLRA does not currently guarantee unions the right to organize workers via the card check method, it does protect against employer interference with the organizing process. Unions have been trying to persuade the new Congress to amend the NLRA to insist that unions be allowed to organize by card checks as well as secret ballots. Such a measure has passed in the House. But on June 26 of this year it failed to receive the 60 votes necessary to overcome a filibuster in the Senate. The labor movement will certainly seek to revive the bill in the next session of Congress. Given that the U.S. Constitution gives Congress, not the states, the power to regulate commerce with the Indian tribes, it is preferable to let Congress, not a state compact, determine whether the card check system should be imposed on tribes.

A century ago, the U.S. Supreme Court described states as the tribes' ''deadliest enemies.'' Even if relations have improved since then in many parts of the United States, tribes in California have special reason to resist state control. California's long history of poor relations with Native nations dates back to the 1850s, when the first governor called for ''extermination'' of the Indians and the Legislature funded private militias to carry out the job. Throughout the 20th century, California remained an outlier state with respect to tribal sovereignty, refusing to recognize the authority of tribal courts, for example, when other states were willing to do so.

Respect for tribal sovereignty means that tribes should be able to have the same freedom as states to decide the level of workers' organizing rights. If federal law allows Nevada and Arizona to limit union organizing to secret ballots for their own employees, then tribes should have the same freedom to craft labor relations laws. Plenty of other states have been able to form compacts with tribes without demanding union organizing rights beyond federal requirements. Of the nearly 250 gaming compacts nationwide, none outside California imposes a card check organizing requirement for an on-reservation casino.

Gaming compacts impinge on the governmental powers of Native nations and their ability to operate the economic engines of self-sufficiency for their communities. Card check requirements also impair tribes' ability to control who can enter onto their homelands. The current California compacts leave workers with plenty of rights under federal labor law. Indeed, application of that federal law was a significant constraint on tribal sovereignty. For a state like California to go beyond federal law, and demand a card check requirement through gaming compact negotiations, would tilt the balance too far on the side of labor. An initiative campaign to overturn the compacts would be misguided, expensive and, if past efforts offer any indication, unsuccessful.

Carole Goldberg is Distinguished Professor of Law at UCLA, where she directs the Joint Degree Program in Law and American Indian Studies, and serves as faculty chair of the Native Nations Law and Policy Center.