Indian Gaming > Forest County Potawatomi casino must reply to EEOC subpoena - Indianz.Com
The
Potawatomi Bingo Casino in Milwaukee, Wisconsin. ... That language seems to run
counter to the Indian Gaming Regulatory Act of 1988. The law ...
Potawatomi tribe must turn over employment records, judge rules
Age discrimination case explores federal rights in tribal businesses
The federal government can subpoena employment records from the Potawatomi tribe as part of an investigation of an age discrimination complaint, U.S. District Judge Lynn Adelman said in an order issued this week.
Adelman's order rejects the tribe's claim that federal age discrimination employment laws do not apply to its lucrative Potawatomi Bingo Casino, which employs about 2,700 people. The decision is expected to add fuel to an ongoing national debate over what federal laws apply to tribal casinos.
"The casino is not an arm of the tribe's government and does not serve in a governmental role; instead, it is a business run by the tribe," Adelman wrote in an 11-page decision that gives the tribe 30 days to turn over the records. "Moreover the dispute involves a non-Indian, and the tribe has no internal process of adjudicating the dispute."
The U.S. Equal Employment Opportunity Commission demanded records detailing age-discrimination complaints from the casino last year after Ferdico Colon lost his casino job and filed a complaint with the agency. Colon alleged he was treated differently than younger employees.
The question of whether Indian casinos must abide by federal employment laws has been bouncing around Indian country and the federal court system for several years. Federal courts around the country have come down on different sides of the issue. The 7th Circuit Court of Appeals, which includes Wisconsin, has not yet ruled on the question.
"It's so strange that we're deciding questions of the reach of state and federal governments onto Indian land today," said I. Nelson Rose, a gaming law expert and Whittier College law professor. "It's something that you would think would have been resolved 200 or 300 years ago."
But, he added, "when the tribes had no money, the law basically didn't care."
Tribal casinos and their associated business posted gaming revenue of more than $28 billion — including about $1.2 billion in Wisconsin — and employed nearly 700,000 people in 2012, according to Casino City's annual Indian Gaming Industry Report. The Potawatomi casino won about $400 million from gamblers in the year that ended June 30, 2013, according to a Journal Sentinel estimate based on payments the tribe makes to local governments.
The fight between the EEOC and Potawatomi "is part of an ongoing battle between the EEOC and the NLRB (National Labor Relations Board) and tribes across the country," said R. Lance Boldrey, an attorney at Dykema Gossett in Michigan. "This is the type of case that has the issues that could make its way to the (U.S.) Supreme Court."
Boldrey is leading the team hired by Gov. Scott Walker's administration that is studying the issues in the fight over whether an off-reservation casino should be allowed to open in Kenosha.
Skip Durocher, co-chair of Indian Law Practice Group for Dorsey & Whitney in Minneapolis, agreed there is potential for a case to go to the Supreme Court because federal district and appellate "courts around the country have come down on both sides of the issue."
Durocher said that "state labor and employment law is easy — it doesn't apply" to tribal business unless the tribe agrees to abide by the state law. But, he added, "the applicability of federal laws is a trickier issue."
Rose said the U.S. Supreme Court has sent out signals that it doesn't like the sovereign immunity powers granted to tribes, and lower courts have been opening the door to federal agencies' exerting authority on tribal land.
"It's kind of turning Indian law on its head," Rose said. "Twenty years ago (the Potawatomi case) would have been decided the opposite way ...Now I think there is pretty good chance it will be upheld" on appeal.
Jeff Crawford, Potawatomi attorney general, said through a spokesman that the tribe "does not discriminate based on age" and it has not decided whether to appeal Adelman's decision.
In his ruling, Adelman rejected the tribe's arguments that it is not subject to the federal Age Discrimination in Employment Act and that it is does not fit the definition of "employer" under the act. He also rejected the tribe's claim that the information sought by the subpoena was irrelevant.
"There's an awful lot of employees nationwide" at tribal casinos, said Dennis McBride, the EEOC senior trial attorney who brought the case. "This decision could pave the way for opening new avenues for relief for people who thought they had no avenue for relief."
Read more from Journal Sentinel: http://www.jsonline.com/business/potawatomi-tribe-must-turn-over-employment-records-judge-rules-b99266393z1-258712021.html#ixzz31MPk2Y81
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