What Laws Control the Tribal Gambling Employers
The applicability of state labor law to tribal gambling employers is significantly less complex. Absent some showing that Congress has consented, the states have no power to regulate activity conducted on an Indian reservation. 96 Thus, tribal labor laws apply and state labor laws do not apply to tribal gambling employers under the federal law. 97 State laws that would be inapplicable include workers’ compensation; state unemployment insurance; state minimum wage; daily or weekly overtime; state disability insurance programs; protection against discrimination for race, sex, age, religion, disability, etc.; protection of minors; no authorized deductions from paychecks; no kickbacks or wage rebates; mandatory day of rest; payment of wages at least semi-monthly; no payment in scrip, coupons, or IOU’s; no required purchases at company store; and payment in full to terminated workers. It should be noted that most states have laws of the types listed, but some states do not. Other states have additional laws not on the list.
State labor law varies considerably with respect to the rights of state government employees. Under these laws, 28 states allow their employees to organize but not to strike; 9 states permit employees to strike in limited instances; 11 states put limits on the areas that are subject to negotiations; and 8 states do not grant their employees a right to bargain collectively. However, citizens of those states have the right to vote for their state and local government officials. Although tribal members make up a majority of tribal casino employees in a few smaller rural tribal casinos, the great majority of tribal casino employees are not Native Americans; for example, in California, more than 95 percent of the estimated 15,000 tribal casino employees are not Indians; at Foxwoods, in Connecticut, there are a little more than 500 members of the Mashantucket Pequot Tribal Nation and more than 13,000 employees.
In Boston, the Commission heard extensive testimony on the issue of applicability of labor law to tribal employers. Connecticut Attorney General Richard Blumenthal urged the Commission to “apply basic worker protections in federal and state law to the tribal employers or require the tribes to enact laws and ordinances or protections that are commensurate with the federal protections.” 98
Noting that Indian casinos have created thousands of badly needed jobs in southeastern Connecticut, Connecticut State Senator Edith Prague, Chair of the Labor Committee for the Connecticut General Assembly, gave testimony on the relationship between tribal sovereignty and workers’ rights:
Federally recognized tribes enjoy sovereignty which is guaranteed under the Constitution of the United States. Along with sovereignty, there is a responsibility to maintain a basic respect for human rights. This is the balance we need. The reason there is no balance at Foxwoods is because of how the Mashantucket Pequots have chosen [to use] their sovereign rights….
I am not opposed to sovereignty. I am however opposed to a tribe using sovereignty as a weapon to shield themselves from having to behave fairly and decently with their workers. There are just over 500 members of the Mashantucket Pequot Tribe, there are just over 13,000 workers at Foxwoods Casino, some of them may be Mashantucket Pequots, the great majority of them are not. And what rights do these workers have? 99
95 Sac & Fox Industries, Ltd., 307 N. L. R. B. 241 (1992). 96 Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973). 97 Examples of state laws include workers’ compensation; state unemployment insurance; state minimum wage; daily or weekly overtime; state disability insurance programs; protection of minors; no authorized deductions from paychecks; no kickbacks or wage rebates; mandatory day of rest; payment of wages at least semi-monthly; no payment in scrip, coupons or IOU’s; no required purchase at a company store, and payment for terminated workers. It should be noted that while many states have these laws, some states do not. It is a prerogative of state sovereignty to choose its labor laws and of tribal sovereignty to choose its labor laws. 98 Richard Blumenthal, Testimony Before the National Gambling Impact Study Commission, Boston, Massachusetts (March 16, 1998) (Attorney General, State of Connecticut).