Impacts of Tribal Sovereignty in California – Part II

By Stephen Magagnini, Bee Staff Writer
April 7, 2003

Some learn Indian justice the hard way
California tribes enjoy the same immunity from civil suits as that granted to foreign countries.

Last of two parts
Most Californians don’t realize that when they enter California Indian territory, they leave many of their rights as U.S. citizens at the border.

If you get into a car accident with a tribal employee on tribal business, are injured at an Indian resort or casino, or are fired without just cause, you can’t sue the tribe in California court. If you’re owed money in a business dispute or are sexually harassed, you can’t sue, either.

The tribes alone determine civil justice in Indian territory because, as sovereign nations, they enjoy immunity from civil suits — the same immunity granted to states and foreign countries.

That justice can vary wildly, because each of California’s 107 federally recognized tribes makes and enforces its own laws, whether it has one voting member or 3,000, whether it’s a democracy or an oligarchy.

The original gambling compact, or treaty, Gov. Gray Davis negotiated with 61 California tribes in 1999 was supposed to protect casino patrons, neighbors and employees. But the state is doing little to enforce those protections, and the compact does not make it clear who’s supposed to enforce them.

Davis twice has asked all 61 tribes to renegotiate the compact, saying it doesn’t adequately address the growing impact of Indian casinos on outsiders. Citizens groups, unions, consumer advocates, and state and local officials see this renegotiation as California’s best chance to pressure tribes to trade some of their profits — and some of their independence from state laws — for more slot machines.

The original compact doesn’t expire until 2019, though, and most tribes don’t want to renegotiate if it means sacrificing some of the sovereign immunity that secures their status as autonomous Indian nations.

“As much as this looks like Bellagio (a Las Vegas hotel), this is an Indian nation,” said Mark Macarro, chairman of the Pechanga Band of Luiseno Indians, which runs a $262 million casino-resort on its reservation in Riverside County. “All governments have immunity to suit unless they agree to a waiver.”

Macarro says those who want to limit Indian sovereignty have a shortsighted view of history: “There’s an indignant self-righteousness: ‘How dare these tribes come in and impact our quality of life?’ ” he said. “A few generations ago when we were being kicked out of our villages at gunpoint, we were saying the same thing, but we were powerless to stop it.”

His solution is for every California schoolchild to learn Indian history and every California law student to study tribal law. He concedes tribes could “do a better job to educate our patrons and employees that they’re entering a different jurisdiction and that the labor codes and health and safety codes might be different.”

Accountability at issue
In California, criminal matters involving tribes can be handled by local law enforcement agencies. But Californians who feel they’ve been hurt or wronged by casino tribes in other ways are learning the hard way that the only justice is the tribe’s own justice:
* A 65-year-old Visalia woman was accidentally crushed by a 350-pound gambler at an Indian casino near Lemoore. It took her a month to walk with crutches, and 18 confusing months to collect a settlement from the tribe.

* A San Marcos businessman tried to recover $250,000 in equipment confiscated by the Rincon tribe in a business dispute. He sued the tribe in San Diego Superior Court and won. Four years later, the Indians still have his equipment, thanks to sovereign immunity.

* A man driving his golden retriever to the veterinarian in Coachella was injured when he crashed into a Cabazon tribal police officer who had cut in front of him. His lawsuit was thrown out based on sovereign immunity, even though the accident happened off the reservation.

The compact requires each tribe to create its own tort ordinance and carry $5 million in liability insurance to cover injury claims by patrons. The tribes also are supposed to offer their 40,000 employees state disability insurance, or an alternative.

Those provisions, and how they’re applied, vary widely from tribe to tribe, however. Many tribes were nearly extinct 20 years ago and are still learning how to govern themselves and dispense justice.

That leaves Californians in Indian country without the civil protections they’ve come to expect elsewhere.

“If there’s no accountability through a tribal (justice) system, they might have less incentive to take certain precautions to protect people,” said Julie Davies, a McGeorge School of Law professor. “What should their accountability be? Should they be dragged into mainstream America’s legal system, or should they be allowed to remain as basically Third World nations with underdeveloped protections where people enter at their own risk?”

The tribes say their casinos are as safe as off-reservation businesses; their success depends on it. “Why would tribes want to have a building that isn’t safe?” said Jerome Levine, attorney for the Dry Creek band of Pomo Indians, a Sonoma County casino tribe accused of ignoring local building and fire safety codes.

The casino tribes, under the state gaming compact, are supposed to make a good faith effort to comply with state and federal environmental safety laws “consistent with the tribes’ governmental interests.”

But Indians and non-Indians often have radically different ideas about what constitutes a good faith effort. Throughout California, tribes are at odds with patrons, contractors, employees and neighbors because the compact doesn’t include any penalties — and is so vague that tribes don’t even know whom to contact to make sure they’re in compliance.

The state Gaming Commission’s chairman, John Hensley, recently resigned in frustration over his agency’s impotence. Because the commission’s role is ill-defined, Hensley said the tribes successfully bypass it at nearly every turn.

After fires and melees at Indian casinos, the commission came up with an emergency evacuation plan. The tribes rejected it and instead created their own evacuation task force.

Tribes unsure on standards
Alleged violations of the compact go to the California attorney general’s Division of Gambling Control, not the Gaming Commission, and Hensley claims the attorney general hasn’t made a single arrest at an Indian casino.
When The Bee requested copies of all state enforcement actions against casino tribes, the attorney general’s office said the state compact exempts those files from the California Public Records Act.

Division Director Harlan Goodson, the state’s top gaming cop, did say his office has aided local and federal investigations of Indian gaming. His staff also has done background checks on several hundred of the 15,000 “key” casino employees covered by the compact and has worked with the tribes to establish minimum standards for slot machines.

None of that would have happened, Goodson said, “if we’d come as bootjack thugs.”

People wrongly assume the state has police power over Indian casinos, said Goodson, who considers himself more like U.S. Secretary of State Colin Powell than famed federal investigator Eliot Ness: “The state’s role is more diplomacy and respect for the sovereignty of the tribes.”

At a recent Indian gaming conference at the Pechanga Indians’ opulent hotel-casino, Goodson explained his philosophy by pointing to a distant canyon.

“There’s a tribal gaming commissioner who grew up in a house on the canyon with no running water, no electricity, no road,” Then, indicating the casino, he added: “You’ve got to understand that to understand this.

“Why begrudge them success? This is gaming for economic development. … Government regulation shouldn’t be the cause of business failure.”

Goodson admits he’s not sure what his job legally entails. First, he says it’s to protect the health, safety and welfare of the gambling public. Yet under the compact, he said, “environmental issues and employee issues fall out of our jurisdiction.” Or maybe not, he adds: “It’s unclear.”

Even the tribes don’t know where to turn if they want to make sure they’re following the compact. Not long ago the Augustine Band of Coachella, which has one adult member, asked Goodson’s office if its new casino met state environmental safety standards.

Goodson sent investigators to do a walk-through, but, he said: “We don’t know what we’re looking at. We don’t have the expertise.” Goodson said he hopes the new compact will solve such problems. Meanwhile, he said, the tribes are doing a good job of policing themselves.

Long road to settlement
Patrons and attorneys who feel they have been wronged, find it difficult to pursue justice in Indian country.
Janet and Bob Joiner were invited to a players’ party at the Santa Rosa Band of Tachi Yokut Indians’ Palace casino near Lemoore in October 2000. The Visalia couple went through the buffet line, loading up on shrimp and prime rib, then sat on folding chairs in a tent crowded with about 1,000 other guests.

The casino manager began tossing plastic Mardi Gras beads into the audience. A 350-pound man, nicknamed “Big Stanley,” reached back to catch some beads, slipped and landed on Janet Joiner, 65, shattering her left kneecap and patella. “It took four guys to get him off me,” Joiner said.

Joiner had two operations and spent weeks in a wheelchair, but said that to this day she can’t sit still or walk for more than half an hour at a time.

“We loved to dance the jitterbug, do country and western line dancing,” she said. “I used to hike in Yosemite.”

If the accident had happened at any non-Indian business in California, Joiner — a part-time real estate broker — could have sued for pain and suffering and to recoup the home sales she said she lost as a result of her injury.

Not at the Palace casino — it has sovereign immunity.

The compact requires every tribe to have a patron dispute resolution policy. But Joiner’s attorney, Victor Moheno, said that despite repeated requests by phone and letter, the tribe wouldn’t give him a copy. Tribal attorney Rob Rosette suggested Moheno didn’t ask the right person.

It was the first of many dead ends. Moheno contacted the tribe’s compact compliance officer, who referred him to the Sovereign Indian Nations Risk Management Service Claims Division in Colorado, which referred him to the tribe’s insurer, Reliance National Insurance of Pennsylvania — which had gone bankrupt.

Nearly 18 months after the accident, Sovereign Indian Nations offered Janet Joiner $54,000, and the option of appealing to the Inter-Tribal Arbitration Council, an Indian forum in Texas. Joiner took the money, which she said covered only about half of her legal and medical expenses.

“It’s take it or leave it if you can get it,” Moheno said.

Moheno has no gripe with Indian sovereignty, as long as people can resolve their disputes before independent judges. “Canada, Mexico and the United States have them under the North American Fair Trade Agreement,” he said. “We ought to have them with the Indian tribes.”

Joiner’s husband, however, is so frustrated with tribal sovereignty that he wants to post billboards outside the casino reading, “You are now leaving the United States of America — Enter at Your Own Risk.”

Immunity’s far reach
Tribal immunity sometimes extends beyond tribal lands, as Antonio Infante and his 12-year-old daughter, Angelica, discovered in August 1996.
The two were driving their golden retriever to a veterinarian in Coachella when they crashed into a car that suddenly cut in front of them. Infante hurt his left knee, neck and shoulders, and said he suffered headaches and dizziness for weeks.

The other driver — a tribal police officer for the nearby Cabazon Reservation — was cited by police for failure to yield. The accident happened off the reservation and the tribal cop wasn’t a tribal member, but when Infante tried to sue, the case was thrown out on the grounds of sovereign immunity.

Walter Clark, Infante’s attorney, then tried to sue the tribal cop personally, “But because he was on duty in a vehicle owned by the Cabazon tribe he had complete immunity.”

Clark finally appealed to Cabazon’s own tribal court, which offered to reimburse only the medical bills not covered by Infante’s insurance, totaling $5,784.

Cabazon leader Brenda Soulliere didn’t recall the Infante case, but she said people need to be aware of Indian laws. “If you’re from California and you drive into Arizona, are you not responsible for understanding Arizona laws?”

Clark pointed out that the federal government and the states enjoy sovereign immunity but have waived it in various civil negligence cases. He said tribes should do the same.

Non-Indians who do business with tribes routinely ask them to sign such waivers so they can litigate any disputes in California courts. But some tribes refuse.

The Rincon Nation of Luiseno Indians in north San Diego wouldn’t sign a waiver for concrete products manufacturer Mark Santar in 1999. Santar said he’s still paying the price: more than $250,000.

Santar had a one-year deal with Rincon’s chairman to mine sand from the reservation. Several months after he started mining, the tribe elected a new chairman, John Currier, who told Santar his crew was threatening the tribe’s water system by digging too deep.

Santar said he paid the tribe $5,000 to do an engineering report. The tribe, claiming he owed them $32,000 more, locked up Santar’s bulldozer, loaders, earth mover and water truck and said that if he came on the reservation again, he’d be arrested for trespassing, according to Currier.

Greg Hout, Santar’s lawyer, sued the Rincon Nation in Superior Court and won. But Santar’s victory didn’t last — the tribe had its sovereign immunity upheld on appeal. “Although we view the allegations … as serious and the lack of remedy at law frustrating, we conclude the state court has no jurisdiction over Rincon,” the judges wrote.

Hout then asked the San Diego County district attorney to charge the tribe with theft of his equipment, but the district attorney called the case a civil dispute and said Santar could be prosecuted if he took back his equipment by force.

So Hout tried a different tack. He filed a consumer complaint with state Attorney General Bill Lockyer, who responded that Santar’s only recourse was to appeal to the federal Bureau of Indian Affairs — the federal agency that had approved the original deal between Santar and Rincon. The BIA, in turn, directed Hout to a federal board of Indian appeals in Arlington, Va. Hout sent in the appeal, but said he never heard back.

“I tried everything,” Santar said, “And it all boiled down to the same thing, ‘Lookit, pal, we’re a sovereign nation and you can’t touch us.’ They’re using my equipment for target practice.”

“That’s a shame,” Currier replied sarcastically. He claimed Santar tried to take advantage of the tribe when it was so poor its only income came from sand. “They came in here cocky as hell … and their arrogance got the best of them. They were giving us two lousy dollars a ton. They were ripping us off.”

Santar said he paid the tribe $4 a ton, and Hout called Currier’s allegations “slander. But what are you going to do about it? We can’t sue them — they have sovereign immunity.”

Employers’ broad discretion
Tribes have wide discretion when it comes to how they treat their employees, especially supervisors, dealers, security personnel and cashiers, who aren’t protected under the compact because they’re not defined as “key” casino employees.
Nine cardroom workers and managers at Table Mountain Rancheria’s casino near Fresno said they were rounded up by armed tribal police in April 2001 and ordered to take random drug tests.

They said they were never told the results. A few weeks later, all were fired.

On May 22, 2001, the tribe’s own gaming commission notified casino operation manager Mark Horton and eight other employees that their gaming licenses had been suspended immediately “due to — allegedly — being involved in activity that may affect the integrity, regulation and control, of gaming.”

In a subsequent letter, the tribe’s gaming commission revoked their gaming licenses following “an exhaustive investigation within the casino involving illegal activity, unprofessional conduct and repeated violations of company policy and procedures.” Ten days later, the former employees received a third letter barring them from the casino for life because of “unsuitable employee relations.”

Dan Casas, the tribe’s attorney, said the workers were fired for violating the compact, which covers everything from a person’s character to his or her associates. “Unsuitable doesn’t necessarily mean they were not great employees,” Casas said.

The fired workers were granted a hearing before the same tribal gaming commission that had fired them in the first place.

They were never given any evidence of wrongdoing, or even any specific allegations, said their attorney, Dennis Chappabitty, a Comanche Indian. “It was kind of a joke; it amounted to no hearing at all.”

“We couldn’t present any evidence or call any witnesses because they wouldn’t tell us what we were in trouble for,” said Horton, a 10-year employee who was making $61,000 a year when he was fired.

The tribal gaming commission upheld its decision to revoke the workers’ gaming licenses, which Chappabitty said destroyed their chances of employment at any other Indian casino.

One of the dealers, Hai Dinh Le, was a former South Vietnamese Army colonel and helicopter pilot who fought in the 1968 Tet offensive.

After he lost his job, he said he could no longer afford his $440-a-month medical insurance. As a result, he said, his wife, Thanh, went for a year without medical treatment for breast cancer.

“I just stay home and stress and stress. I hurt so bad,” Thanh said. When she finally returned to her oncologist, Dr. Christopher Perkins, the cancer had spread across her chest. “It’s incurable,” Perkins said. “Our best hope is remission.”

Outside Indian country, workers like Hai Dinh Le can sue for unfair termination or discrimination.

“At least there’s some remedy. … You’re not just blackballed out of the industry because an employer doesn’t want to deal with you,” said Jack Gribbon, political director for the Hotel Employees and Restaurant Employees International Union (HERE).

Unions also offer protection in many workplaces, but only key Indian casino employees can unionize under the compact — and the compact has no penalties if tribes threaten workers who try to organize.

Just one tribe has reached a collective bargaining agreement with its workers: the Rumsey Band of Wintun Indians, which operates the Cache Creek Casino in Yolo County.

Table Mountain’s compact compliance officer, Preston Van Camp, says he was fired for telling slot machine workers that they had a right to organize. Van Camp says his firing was legal, because compact compliance officers aren’t protected by the compact.

‘An expensive lesson’
Federal and state laws protect employees who can prove they were fired in retaliation for exposing wrongdoing — but not in Indian country.
Several years ago, Stanley Elliott, a security manager at the Tachi Yokuts’ casino, discovered a security guard had used a hidden camera to zoom in on a female gambler’s cleavage and thighs.

After he informed the tribe’s gaming commission, he was fired for “failure to exercise discretion and sound judgment to prevent incidents which reflect on the (tribe’s) reputation, integrity and security.”

Elliott complained to the tribal council, which ordered him reinstated without “further threats or intimidation.” But the tribe’s gaming commission let the firing stand.

Elliott, a former police officer, tried to sue the tribal gaming commissioners individually for wrongful termination. A Superior Court judge ruled the gaming commissioners had sovereign immunity, too, because they were acting on the tribe’s behalf.

“It was an expensive lesson,” said Elliott, 56, estimating he’s out about $4,000 in legal fees. Elliott’s lawyer, Bill Romaine, contacted the federal Equal Employment Opportunity Commission only to be told that tribes have sovereign immunity from all retaliation claims.

Rosette, the tribe’s attorney, said Elliott was terminated for good cause. “People who never respected the sovereign status of the tribe to begin with get angry and feel their rights were trampled on,” he said, “when in fact they should have learned the tribal process and tribal law.”

Many tribal leaders consider their justice fair, and believe the compact provides plenty of protection for patrons and workers.

“We like it the way it is; it’s as good as sausage gets,” said Pechanga chairman Mark Macarro.

Other Indian representatives, including tribal lawyer Howard Dickstein, say the problems that have arisen since 1999 illustrate why the compact needs refining.

“The system is imperfect; the system has been violated,” he said, “But it’s improving. Four years ago there was no system … there was anarchy.”

Visiting a foreign country “is not that different than going to Indian country,” Dickstein said. “The difference is, no one ever went there. Now they’re going, and they’re shocked because it’s not like going to McDonald’s or Arco Arena. The law, by its nature, is playing catch-up with the changes.”