Gaming Guru

Bits and Pieces from Indian Country - December 2007

It seems hardly a month goes by without another controversy in Indian Country. This month is no exception, with three controversial and polarizing issues. The United Auto Workers, in a relentless search – as are other unions – for new workers to organize, is moving into Indian Country. The union and the Mashantucket Tribal Nation are at odds over the campaign and the law. The tribe passed an ordinance meant to govern unions and union organization on tribal land, thereby attempting to avoid the jurisdiction of the National Labor Relations Board (NLRB) and federal regulations. The union simply continued its efforts to organize, including holding an election which it won. No one knows what will happen next, except that it is headed to the courts. Meanwhile, in Michigan the Teamsters are trying to organize the workers at the Soaring Eagle Casino. There are a couple of differences that are worth notingas they illustrate broader national trends. The Foxwoods campaign is aimed at table game dealers, a trend that is new, but one that is gaining strength in both Las Vegas and Atlantic City. The Michigan campaign is aimed at a more traditional back-of-the house workforce. It represents a growing trend to attempt to pierce tribal sovereignty, and while supported by recent federal court rulings, it is still struggling to gain ground.

Dealers at Foxwoods Resort Casino have a date for a union vote the Saturday after Thanksgiving. Federal labor officials said Tuesday that they will hold an election Nov. 24 for the 3,000 dealers to decide whether to unionize. The vote could give organized labor its first members in Connecticut's fast-growing casino workforce. (Mark Peters, Hartford Courant, 11-2-07)

The first union vote at the Soaring Eagle Casino & Resort has been set for Dec. 20. Teamsters Local 486 announced Wednesday that members of the housekeeping staff will have the opportunity to vote that day on whether to be represented by the Teamsters union. About 300 people are members of the Soaring Eagle's housekeeping staff. The vote will be conducted by the National Labor Relations Board, and is to take place in the Three Fires Room of the Soaring Eagle conference center. (Mark Ranzenberger, Mt. Pleasant Morning Sun, 11-26-07)

In a related issue, Californians are scheduled to vote in February on the expansion of Indian gaming in the state. At one level, tribal-state compacts are the purview of the governor – and possibly the legislature – but not the electorate. However, opposition to Indian gaming in California can be very strong and well-organized – pun intended. The card rooms, the racetracks and unions (and possibly some Nevada casino interests) conspired on a petition drive aimed at putting the issue on the ballot, and they succeeded. The governor says they are costing the state in excess of a million dollars a day in delayed payments to the state that will result from the new compacts. On the last day of the month of November, the federal government threw a new twist into the whole thing by approving the compacts; in theory, that gives the tribes the right to begin operating under the new compacts. One suspects that this too will end up being resolved in the courts, regardless of how the voters vote.

Two Riverside County tribes Wednesday lost separate legal bids to block a ballot proposition asking California voters to overturn new Indian gaming deals with Gov. Arnold Schwarzenegger for expanded gambling. Sacramento Superior Court Judges Jack Sapunor and Gail Ohanesian in different hearings denied petitions by the Morongo Band of Mission Indians and the Pechanga Band of Luiseno Mission Indians to keep their expanded gambling agreements off the ballot. A union, two race tracks and two other tribes want these two agreements – and those of the Agua Caliente Band of Cahuilla Indians and the Sycuan Band of the Kumeyaay Indians – on the Feb. 5 presidential primary ballot. (Jake Henshaw, Palm Springs Desert Sun, 11-16-07)

In a stunning development, the controversial gambling agreements for four Southern California Indian tribes, including Sycuan of El Cajon, have been approved by the U.S. Interior Department. As a result, the multibillion-dollar deals could take effect early next week, even though all face a statewide vote on the Feb. 5 ballot. That has already prompted a tangle of legal questions that those close to the situation have only begun to ponder. "I'm not in a position to assess what it means," George Forman, an attorney for Sycuan and another of the tribes, Morongo of Riverside County, said late yesterday. "We are sailing in uncharted waters at high speed." (James P. Sweeney, Copley News Service, San Diego Union-Tribune, 12-1-07)

And finally, in Florida a process not unlike that in California is beginning. The Seminole tribe of Florida is one of the first tribes in the nation to have gaming operations, beginning with bingo long before any of the court decisions or federal legislation meant to govern it. But they are also one of the last major tribes to negotiate a Class III compact in accordance with federal law, even though the act passed in 1988. The governors of Florida have consistently refused to negotiate with the tribe. One lawsuit made it all the way to the United States Supreme Court, and the court ruled in the state's favor, stating that Florida could not be sued without its consent.

The federal government has continued to pressure the state into negotiations, and this year said it would create a compact and authorize the tribe to conduct Class III casino gaming. The state was given a deadline. The new governor, Charlie Crist, chose to negotiate hoping to gain some control and, even more important, revenue from the tribe's operations. Predictably the previously threatened lawsuits were filed. The state's attorney general, the legislature and some of the race tracks have rushed to the courthouse to stop the compact from being enacted. Gulfstream Park is struggling; the slot machines have not produced the expected revenues and are declining. And besides the compact, the track is facing a new referendum that would authorize slot machines in Miami Dade County.

State Attorney General Bill McCollum said Wednesday that he will sue the federal government if it follows through with threats to give the Seminole Tribe Vegas-style slot machines if Gov. Charlie Crist doesn't complete negotiations on a gambling agreement by next week… 'They can put all they want in a letter to the governor, but I don't think they can act on it,' McCollum said. ``The Indian gaming law provides a very explicit procedure. It does not give the Department of Interior a decree that they have the authority to issue gaming procedures.' (Mary Ellen Klas, Miami Herald, 11-8-07)

House Speaker Marco Rubio asked the Florida Supreme Court Monday to invalidate a gambling compact Gov. Charlie Crist signed with the Seminole Tribe of Florida, arguing that it 'blatantly usurps legislative power' and violates the Constitution. The high-level challenge was filed at noon Monday by Rubio and the House of Representatives and could cloud the historic agreement Crist signed last Wednesday with Seminole Chief Mitchell Cypress. 'This case is about the governor's encroachment on the Legislature's law- and policy-making authority, in violation of our Constitution's strict separation of powers provision. The compact most blatantly usurps legislative power by authorizing numerous card games that the Legislature has forbidden in all circumstances.' (Mary Ellen Klas, Miami Herald, 11-19-07)

Gulfstream Park Racing & Casino has slashed its slot machines from about 1,200 to 516 as part of a revamped business plan to boost revenue in 2008 after trailing in third place for months among the three Broward County casinos. The plan: change the first floor casino to a half-casino, half horse-racing lounge. Add a dozen new versions of video poker, and swap out other, less-popular machines for more penny and two-cent slots. Once all the changes are complete in mid-December, the casino will have about 825 slot machines and video poker games divided between the second floor casino and the redone, first floor lounge-casino…Gulfstream Park asked to join a landmark court case that may determine the limits of a governor's power and set the course for Florida's gambling industry… The 'racino' has been troubled for months. Its revenue, calculated on a per-machine basis, has been the lowest of the three state-regulated casinos now operating in Broward. It has averaged $81 per machine in the fiscal year that began in July, compared to $167 for Mardi Gras Racetrack and Gaming Center and $213 for The Isle at Pompano Park. (Amy Driscoll, Miami Herald, 1-29-07)

Indian gaming has matured, and there aren't many new opportunities. The Navajo are probably the last major tribe without gaming, and they do not have the prime locations that would make their casinos huge successes to compare with the Foxwoods and Mohegan Suns of the world. However, there is still a lot of growth and expansion within existing jurisdictions, as California and Florida demonstrate. But as those states also demonstrate, future expansion is likely to face many challenges that didn't exist in the early years of Indian gaming. The power of unions both for and against expansion is very new and is gaining strength.

Bringing Indian gaming to an open vote is not totally new, but it too is gaining strength, as voters in Maine just demonstrated. Californians voted on Indian gaming in the beginning and overwhelmingly voted in favor of Indian casinos. It will be interesting to see how they vote now, after years of direct experience with them. And certainly suing as strategy to stop Indian gaming is not new, but with more opposition and politicians trying to step into the process, it too is likely to increase in effectiveness. Every time tribal sovereignty is litigated it loses a little; that simply is the nature of litigation. The tribes are very aware of that and work collectively to strengthen sovereignty at a legislative level and to avoid the courts whenever possible.

But now, that is simply my opinion, isn't it?

Ken