MASHANTUCKET, Conn. - The Mashantucket Pequot Tribal Nation will challenge a recent Foxwoods Resort Casino election in which dealers voted to unionize under federal labor regulations instead of tribal law.
The case, which has national implications, is being closely watched by both tribes and unions across the country, and highlights the great divide between Native communities and the dominant society over tribal sovereignty and the legitimacy of tribal courts.
Foxwoods' dealers voted 1,289 to 852 Nov. 24 in favor of forming a United Auto Workers union. The election was conducted under National Labor Relations Board oversight after the board rejected the tribe's appeal that federal labor laws do not apply on tribal land. The UAW spent six months organizing approximately 2,600 dealers - around one-third of Foxwoods' 10,000 employees.
Jackson King, the tribe's attorney, said the nation will file objections to the elections with the regional NLRB and, depending on the outcome, will consider an appeal in a federal circuit court.
The ballots had some technical problems, King said, but the main argument remains the tribe's authority to regulate employment on tribal lands.
''We have the right to raise the jurisdictional issue again and we intend to do so,'' King said.
Robert Madore, UAW director for Region 9a, said he was happy at the outcome.
''I think it's a huge victory, but let me applaud the Pequots and Foxwoods and Mohegan Sun and the Indian nations' casinos that have been able to structure themselves in a way that they're both self-sufficient and have made it to a point where they are multinational billion-dollar corporations.''
Madore said the UAW has no immediate plans to organize workers at Mohegan Sun, but looks forward to the growing casino market in New England.
''I walk before I run and I'm going to deal with the workers that have chosen the UAW to represent them. There has been all kinds of inquires throughout our region based on this decision. And with Massachusetts Gov. Deval Patrick, we applaud his vision of the future [of three casinos in that state] and, obviously, being a part of the Massachusetts AFL-CIO we've already pitched for casinos in Massachusetts and we think we're going to be one of the major players also.''
On sovereignty, union says: 'Get over it'
Madore dismissed Mashantuckets' concern over the issue of sovereignty, citing a circuit court ruling last February that a casino owned by the San Manuel Band of Mission Indians was subject to federal labor laws.
''It's been decided. Get over it. Simply get over it,'' Madore said.
The UAW local represents around 6,000 casino employees in non-Indian commercial casinos in Detroit and Rhode Island, where the state government has a monopoly on casino gaming and has blocked efforts by the Narragansett Indian Tribe to open a facility.
Prolonging the union issue through objections and appeals may backfire and harm the tribe's business, Madore warned.
''I don't believe the issue is sovereignty. I think it's just an attempt on their part to not accept the will of the work force and I think that's going to come back to haunt them in terms of their business process,'' Madore said.
Madore pointed to the Mashantuckets' $700 million expansion project with MGM that is currently under way.
''They've got onsite construction contractors that are all unionized. I think rational people need to sit down and evaluate where they're going. The worst thing that could happen here is the industry could be hurt, and I only say that not because we intend on doing that, but I was personally out doing visibility and saw for myself the public apathy against the casino - peeping horns, fingers up, thumbs up in terms of winning - there's got to be a lot of animosity both in the community and the state for that to happen,'' Madore said.
A day after the historic vote, Connecticut Attorney General Richard Blumenthal, who has fought the Mashantuckets on land and gaming issues for years and has opposed the federal recognition of the Eastern Pequot and Schaghticoke tribal nations, applauded the UAW victory and acknowledged its potential impact on tribes everywhere.
''This union is the first to be established by a tribal casino by contested vote,'' Blumenthal said. ''Its impact could be seismic in changing the landscape of labor relations at tribal casinos, not only in Connecticut, but across the nation.''
Mashantucket leaders are very aware of the vote's significance in Indian country, King said.
''In all the discussions we have with the tribal council, we factor in our responsibility to all of Indian country on this and we try to put the best foot forward not only for this tribe but for all of Indian country. That's very, very paramount in our mind,'' King said.
Union says tribal court is 'fox in the hen house'
Last summer, as employees were organizing the union, the tribe passed labor laws giving employees the right to organize and bargain collectively.
''We aren't anti-union,'' King said. ''We believe employees have the right to form a union and bargain collectively and we asked the employees to file their petition under tribal law, but they have not done it. This is not about the right of employees to unionize. This is about whether you respect tribal law or not.''
Madore said the tribe only modified its labor laws after the union was ''on the ground'' and organizing the workers, and it did so in order to be able to say that employees could organize under tribal law.
''I believe that's an excuse for them not to be unionized.''
The UAW would not petition for a union vote under the tribal system, he said, ''because that's like saying I'm putting the fox in the hen house. The employees would not get the true representation and protection. The judges are all employees of Foxwoods. They're paid by the tribe. You have somewhat of a commitment to respect and protect your employer, not to say the judges aren't qualified or don't have the expertise, but there comes a point where it becomes a problem.''
Couldn't the same thing be said of the NLRB from the tribal perspective?
''You can't say that with the NLRB because the vast majority of people are from the Bush administration and they're not sympathetic to the UAW. History shows we lose more than we gain with a Republican administration,'' Madore said.
King pointed to 15 years of published tribal court decisions that attest to the independence and integrity of the tribal court.
''The tribal court operates in accordance with the law just like a state court. If you have a claim against the state of Connecticut, you bring it in state court. If you have a claim against the tribe, you bring it in tribal court and you will get a fair decision. It's really wrong of them to draw the conclusion that somehow the tribal government will do what it wants. It won't. It will do what the tribal court tells them to do,'' King said.
San Manuel ruling 'not the last word on sovereignty'
The tribe is considering all of its options, including proactively seeking an appeal in federal court, refusing to negotiate a contract and waiting for the union to initiate a court action, and negotiating with the union.
But entering into a union contract is rife with complexities, unanswered questions and the possibility of unintended consequences.
''If we said OK to a contract with the union, what would happen if the union wants to sue us? Well, we're not waiving our sovereign immunity, so how does that work? What happens to our Indian preference laws? What happens to our employee rights code where employees are given certain rights under tribal law? Does that all go down the drain?'' King asked.
Although the spotlight is on a handful of tribes with large casinos, the area of tribal-employee relations is much broader and is a relatively new area since tribes have not been large-scale employers for very long, said John Dossett, general counsel for the National Congress of American Indians.
''Tribes across the country are working on these issues and making the kinds of internal reforms that are needed and I think that's going to help. If tribes do a good job internally with their regulations and codes, they're not going to have that kind of a problem,'' he said, adding that the San Manuel ruling was ''not the last word on sovereignty.''
The case, which ironically started with a dispute between two unions, only considered whether the San Manuel Band was an employer under federal labor law. The 2 - 1 decision was heard in only one circuit court, ''so clearly it's possible other circuits may take a look at the question of sovereignty in a different context,'' Dossett said.
Other court cases will likely focus the court's attention more specifically on sovereignty, he said.
''It's going to be a different matter if it comes up in the context of something like Indian preference or even the special programs tribes sometimes have for training tribal members. I think those kinds of things would draw sharper lines about what the tribes' interests are as sovereign governments.''