Just months after an appeals court ruled that American Indian tribes are subject to federal labor law, the unions we predicted would come calling in the wake of a 2004 labor ruling against tribes have surfaced, this time victorious at one of the world's largest and most profitable casinos.
About 60 percent of eligible dealers at Foxwoods Resort Casino on Nov. 24 voted in favor of joining the United Auto Workers union, which represents about 6,000 casino employees in four other states. The dealers represent about a third of the casino's 10,000 employees and were courted by UAW for six months. It should be noted that during that time, the tribe enacted labor laws to protect tribal authority over union activity; but according to the tribe's attorney, the disgruntled employees did not file any petitions under its jurisdiction.
The Mashantucket Pequot Tribal Nation, which owns Foxwoods, vowed to contest the vote, and will file an objection with the regional National Labor Relations Board. Although it was a solid first step for those 1,289 workers seeking to unionize, the outcome is not exactly ''overwhelming,'' as described by Connecticut Attorney General Richard Blumenthal.
Blumenthal, the state's leading opponent of tribal recognition and Indian casino fighter, predictably rushed to celebrate victory. ''The message is that workers want union advocacy, and the law powerfully supports them,'' he told the local Norwich Bulletin. ''No one is above the law, no matter how wealthy or powerful or even sovereign.'' He said the vote ''could have a domino effect across the country at tribally owned commercial enterprises.'' At least, he hopes it will. Blumenthal exhibited the same disregard for tribal sovereignty in 2004 upon hearing the San Manuel Indian Bingo & Casino v. NLRB ruling. He gloated then that the ruling was ''a legal earthquake that shatters the complete immunity from labor law now enjoyed by most Indian casinos.'' Continuing with his disaster theme, he remarked following the union vote that ''its impact could be seismic in changing the landscape of labor relations at tribal casinos.'' We issue no argument there. We can fully expect to see more organizing efforts by unions at tribal casinos throughout the nations.
While the anti-sovereignty stance is not unusual for state attorneys general, Blumenthal's determination to involve Connecticut in the San Manuel case fostered the notion in his state that unionization was inevitable; that union organizers would be greeted with open arms. It is no coincidence that Foxwoods is the first Indian casino to face this violation of tribal jurisdiction in the wake of San Manuel. The sovereignty-eroding union win by the UAW has been deemed by Blumenthal an ''historic golden opportunity'' for the tribe. Only officials with complete disregard for tribal sovereignty would describe the situation that way. Cut from the same cloth is regional UAW director Robert ''Bob'' Madore, who, when interviewed by Indian Country Today reporter Gale Courey Toensing, dismissed the Pequots' (and in essence, every tribe's) concern over the issue of sovereignty. He cited the San Manuel ruling: ''It's been decided. Get over it. Simply get over it.''
The Mashantucket Pequot tribe is an interesting leader in this fight. Its major government enterprise, Foxwoods, helped tremendously to revitalize the Indian community and its ability to self-govern. But the small tribe's massive success has wrought two critical dilemmas: how to navigate uncharted territory in the operation and management of what is now the world's largest casino, and how best to deal with the attention only a world-class brand and top regional employer that is also American Indian can attract. These elements are generally celebrated, but not by the aforementioned attorney general, those who seek to regulate Indian gaming, or those business owners who feel ''the Indians'' have an unfair economic advantage.
It is worth repeating: Public perception becomes public policy, without exception. Basing an appeal to the NRLB on Indian tribal sovereignty is expected and the right thing to do, but the tribe must also work diligently to get its house in order to effectively address the concerns of so many unhappy (and now, vocal) employees. The domino effect may well have started at Foxwoods, but it is entirely possible that it can also end there, regardless of whether San Manuel is further challenged.
It is imperative that tribes confront this growing threat to tribal sovereignty by implementing strategies that render federal oversight unnecessary. Casinos and other tribal enterprises are not just profit centers. They are also controlled facilities for creative, tribal public relations opportunities and improving employee relations. Employees and guests are captive audiences for oft-repeated, pro-tribal sovereignty messages. Polls in recent years have shown a considerable wealth of public support for tribes and their enterprises. Building on customers' very basic knowledge of tribal sovereignty, tribes can take education a step further and introduce or promote concepts relating to self-regulation and tribal economic development as critical government services. The U.S. District Court of Appeals' upholding of the NLRB's decision was dependent on the concept of the San Manuel Band as an ''employer'' within the scope of the National Labor Relations Act and its enterprises typical ''commercial'' businesses, thus rendering tribes subject to federal labor laws. Preventive maintenance like community-building that begins in the tribal workplace is a far superior tactic than fighting an uphill battle after much of the damage has already been perpetrated.
Indian gaming is a $26 billion industry; no longer will it continue to grow unnoticed by labor unions interested in restoring their political influence. We previously expressed solidarity with American and Native American workers who belong to unions and whose families benefit from their membership. Many Indian families live comfortably due to union association. This latest battle is not between tribes and unions or workers. ''This is not about the right of employees to unionize,'' said Jackson King, the Pequots' attorney. ''This is about whether you respect tribal law or not.''
It is a question of tribal sovereignty and the criticality of protecting and fortifying it within and among Indian nations.