Lawsuit Against Indian Casino Challenges Tribal Sovereignty
Posted by Jemal Young on Feb 20, 2005 - 11:52:00 PM

PLACER COUNTY, Cal. – In a move that has raised the controversial issue of individual rights versus tribal sovereignty, seven former employees of tribe-owned Thunder Valley Casino have filed a complaint in Sacramento Superior Court demanding a jury trial on allegations including sexual harassment, age and disability discrimination, denial of wages and wrongful termination.

Among those named as defendants in the case is the United Auburn Indian Community, owner of the booming Thunder Valley Casino. Comprised of both Miwok and Maidu Indians, the United Auburn Indian Community is guaranteed sovereign immunity from suit under the 11th Amendment.

When it comes to Indian gaming legislation, says Professor Doug Nash of the University of Idaho College of Law, “Nothing is simple.” To be sued for damages, a tribe, which is a sovereign entity “with immunity identical to that of the United States,” must consent to waive immunity in its gaming compact with the state. Although Congress can waive a tribe’s immunity “in theory,” Professor Nash can recall no such action ever taking place.

The plaintiffs, all women, seek a class action civil suit for unspecified damages against Thunder Valley; the United Auburn Indian Community; Stations Casino, which has a contract to manage Thunder Valley; and several individuals, including Thunder Valley’s director of information technology, Curtis Broome. Two plaintiffs accused Mr. Broome of making unwanted sexual advances and sexually offensive physical contact. He could not be reached for comment.

The case’s core resides in the difference between internal tribal functions and tribal commercial functions—a distinction that Robert Monterrosa, the plaintiffs' attorney, finds critical in determining the extent of sovereign immunity. The Supreme Court has defined Indian tribes as “distinct, independent communities retaining their original national rights,” communities that retain “the power of regulating internal and social relations.”

However, Mr. Monterrosa stated that in recent 9th Circuit Court of Appeals cases, the Court has distinguished between internal functions and those that have an impact on interstate commerce. “A tribe participating in a very profitable commercial enterprise, who primarily employs and caters to non-Indians, can not then use sovereign immunity as a sheild against California’s citizens,” said Mr. Monterrosa.  He noted he has yet to determine if Stations Casino is even under tribal ownership.

Does sovereign immunity pose a threat to individual liberties? Professor Nash thinks not. Although the tribal governments that predate state and federal institutions are not bound by the Constitution, the Indian Civil Rights Act of 1968 imposes “Bill of Rights-type” restrictions on tribal governments. Moreover, said Professor Nash, it would be “bad business” for gaming tribes to permit such behaviors as those alleged in the complaint against Thunder Valley. In the interests of good business, the Auburn Indian Community has what its attorney, Howard Dickstein, calls a “zero-tolerance policy” regarding sexual harassment.

Mr Dickstein said, “The tribe has guaranteed in its compact with the state of California that it won’t engage in such activities.” He went on to say that although the United Auburn Indian Community is sovereign and therefore immune to civil suit, an internal investigation is presently underway and “immediate action will be taken” against responsible individuals if the allegations are determined to be true.

At present, the internal investigation has found no evidence to substantiate any allegations. “It’s a grab-bag of claims,” says Mr. Dickstein, and “the complaint was filed 6 to 12 months after the alleged incidents,” instead of being reported internally—a statement that contrasts with Mr. Monterrosa’s assertion that there is evidence that shows the plaintiffs did follow proper internal procedure. Despite his skepticism regarding the validity of the claims, Mr. Dickstein expressed concern that there could be “great consequences for the tribe if the complaint isn’t handled properly.”

As for Mr. Monterrosa, he expects a “difficult battle” ahead, “because so many cases against Indian casinos have been dismissed due to sovereign immunity.”

If the Sacramento Superior Court determines that state law doesn’t apply, Monterrosa said, “We’ll go to federal court,” perhaps foreshadowing what would certainly become a thunderous decision, one way or the other.