Thursday, January 19, 2006

Where Title VII Does Not Reach

Apropos of our recent class discussion of "who's an employer": Check out this story from Salon, which discusses how federal equal employment opportunity laws are inapplicable to claims of sexual harassment and abuse of employees at a casino owned (but not operated) by a small California-based Indian nation.

A couple of quotes from Taking on a Nation, by Peter Byrne:

The [EEOC] gave them the right to sue, but also told them it had no jurisdiction to investigate their claims themselves, because the casino is on Indian land, which is sovereign territory. Regina Brown, speaking for the [California] state agency, says pretty much the same thing . . . .

[Attorney for the plaintiffs] Debra Smith . . . explained why the Thunder Valley lawsuit should be allowed to proceed. The court had jurisdiction, said Smith, becuase the tribe had failed to protect the women's civil rights. She argued that the tribe's sovereign immunity from lawsuits was trumped by the equal rights provided to all people by the constitutions of California and the United States. She said that the state never intended for tribes to be able to use the tool of sovereignty to take away the civil rights of others. She said it was especially wrong to let a tribe's business partners hide behind Indian sovereignty.**

Ruling against Smith, [the judge] threw the case out of court. "It's a question of law," she said, without elaborating.

**NOTE: Though the United Auburn Indian Community owns the casino, it was financed and is operated by Station Casinos of Las Vegas.


Blogger John Glennon said...

Ok. A few things before I get into my opinions and views on the actual case.

First, having heard nothing of this case before reading the Salon article, it is difficult to judge how honestly the author treats this subject. Salon, for those of you who don't know, does have a decidedly left-wing, very anti-business viewpoint. They do a lot of great work on topics that don't get deep coverage in the mainstream media. But as you might have noticed, the article is a bit one-sided.

Second, I didn't know much about Native American sovereignty. After reading that article... I still don't. It's a very touchy issue, and no matter how hard you try, I think any changes to the situation will face a lot of obstacles. Indians. Lobbying. Tons o' cash. You get the picture.

As for this case, I think these women should be able to sue the company that runs the casino just as they would any other company. The tribe owns the casino, but every other aspect of its creation and operation is in Station Casinos' hands. The assertion by the tribe that "sovereign immunity extends to the casino because it is legally inseparable from the tribe" seems, on its face, to be some bad reasoning. The casino is run by non-tribesmen, employs mostly non-tribesmen, and attracts mostly non-tribesmen as customers. Seems pretty separable to me.

However, can Lyons and the others sue the Native Americans? I doubt it. Yes, they probably have more money for these women to go after, and they shouldn't have allowed a company that condones harassment to run their casino, but they're still an Indian tribe. Seems like a horrible precedent to name them in a federal lawsuit.

So, uh, change the laws. Make the companies that run Indian casinos (or any other special Indian businesses) adhere to all the rules that everyone else does. Just don't make the Indians pay taxes at the end of the day.

11:31 PM  

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