In the months-long ordeal centered on Indian Gaming in California, the tribes, Gov. Arnold Schwarzenegger, the state Assembly and labor unions have remained at an impasse that seemed — until recent weeks — impossible to overcome.
But, at long last, as of this writing, meetings are beginning to take place between key legislators and tribal leaders. A new compact, which would allow up to 22,500 additional slot machines statewide and as much as $500 million annually in gaming revenue for cash-strapped California, could be in the offing.
The winners appear to be the tribes and the state budget. The losers: hotel and restaurant employee unions.
In early June, according to Copley News Service, Assembly Speaker Fabian Núñez (D-Los Angeles) told organized labor it would not get what it wants in the pending gaming agreements. He is discussing revisions on other issues that could be made without renegotiating the compacts, instead opting for a potential Memorandum of Understanding (MOU) with the gaming tribes.
During a conference call, Núñez allegedly informed state and national labor leaders that he would not be able to get their key objective, a collective-bargaining tool for union organizers known as card-check neutrality, included in the gaming compacts.
Labor leaders say card-check neutrality (the ability to organize workers simply by having a majority sign cards expressing union support) is needed to protect non-Indian casino employees who are apparently easy for their tribal employers to intimidate. This is a notion the tribes openly bristle at.
“The big thing is the tribes and the unions,” Victor Rocha, a member of the Pechanga Band and administrator of the highly regarded Indian Gaming news and information website www.pechanga.net, said. “Tribes feel that they can be better employers than the unions can. Bottom line is, the tribes are playing the game right.”
Michael Lombardi, a longtime Indian Gaming insider who has consulted with Indian tribes on civil, regulatory, operational and compact matters for over 20 years, said previous compacts were held up in the state Legislature by the the Hotel Employees Restaurant Employees (HERE) union, and — to put it mildly — he ain’t happy about it.
[Note: HERE is now known as UNITE HERE, after merging with the Union of Needletrades, Industrial and Textile Employees in 2004.]
“Those compacts were not approved last year because of politics: The politics of HERE,” Lombardi said. “HERE was able to kill the compacts in the state Assembly because it wants the tribes to amend their tribal labor relations ordinances.
“California is the only compacted state where there’s a requirement as a condition of getting a compact that the tribe has to adopt a tribal ordinance that grants access to collective bargaining units and establishes a procedure for conducting union elections.
“Those procedures call for a secret ballot. HERE wants to do away with the secret ballot and go to a card-check. They’ve been pursuing that nationwide.”
“HERE issues are what held the compacts up last year, and that’s what’s holding them up now,” he added. “I call it the big labor lie: That Indians in California mistreat their employees and threaten and intimidate them, and that those workers would embrace HERE except for the tribes’ underhanded tactics.
“But they’ve never been able to present one scintilla of evidence.”
At this point, however, the unions are unlikely to attain their statewide goals, despite the support of some Democratic leaders in the state Assembly who are traditionally pro-union.
“The interesting thing is, it’s not the tribes fighting Republicans,” Rocha said. “It’s the tribes fighting Democrats. That is a different paradigm shift than everyone is used to.”
He said that in the past, Democratic leaders were the tribes’ traditional allies. In this case, he said, “It’s Republicans who worked with the tribes: a Republican governor, Republican legislators. This is California, where the Democrats are very entrenched. So you have to take this quite differently.”
For California Indian nations and gaming observers, the complicated dance between the tribes and state Democrats is fascinating to watch.
“What this exposes the tribes to is Democratic strategies,” Rocha said. “What their selling points are, where they’re going to sell you down the river. Now you know and understand who you’re fighting. If you maintain a delusional vision of where politics is, you’re going to get chewed up.”
“We learned that eight, nine years ago,” he continued. “We learned that the Democrats will help you up to a point, until it comes to the unions.
“I think this shows, today, that the tribes are very, very powerful; very, very smart; and that they’ve learned how to wield this power. They’re not clumsy. I point out that we’re talking about the big tribes, the big six.”
The big six being Agua Caliente, San Manuel, Pechanga, Sycuan, Morongo and Viejas, operators of some of the highest-grossing Indian casinos in the nation.
If it’s true — as is often said — that as California goes, so goes the nation, tribal leaders across the country may be able to take away some lessons from the California Indian Gaming experience.
“I believe it’s another textbook case for the Indian tribes on how to negotiate compacts, how to be strong, how to be focused,” Rocha said of the current thaw regarding gaming agreements in his home state. “You have to know that all the money in the world is not going to help you if you’re not smart, not clever. You have to know the game and how to read the battlefield.”
He said the message to other tribes in other states is to simply take an intelligent, balanced approach to compact negotiations.
“The tribes here are very, very sophisticated,” he said. “They made some concessions, but they brought in the state as a partner. They wanted a lot, but we met eye to eye, and I think we got a really good deal.”
Lombardi cautions, however, that adopting state governments as partners may come back to bite you in the proverbial … well, you know where.
“My 20 years of experience tells me that the greatest challenge for Indian tribes negotiating a compact with a state is how you plan long-term when the agreement that you have is not going to be honored,” he said. “When an Indian tribe goes into an agreement with a state, as here in California, you have to expect that it’s not going to be honored, that the state is going to want to continue to make changes in it, profound changes. As time has gone by, the states have become more clever.”
Lombardi’s advice to tribes in the midst of compact negotiations? Be strong.
“I hope tribal leaders will come to the conclusion that keeping control, regulating and creating ordinances and keeping that in the hands of tribal gaming agencies and tribal councils — and not letting the state take those responsibilities — is worth fighting for,” he said.
“The only thing that makes Indian tribes in California sovereign is that they have retained, according to the Supreme Court in the Cabazon decision, civil regulatory authority: The ability to have gaming ordinances and business ordinances and their own building codes and environmental regulations. The same thing that a county or state does,” he added.
“That’s why Indian tribes have been enormously successful around the country. Our governments have been freed up to succeed, but we’re in a phase now where the states are now saying, ‘Whoa, wait a minute. We’ve gotta get control over this. They’re making too much money. They’re getting too powerful. They’re participating in the political process. Oh, my God, they’re buying land! Their languages are coming back! Now there’s a whole bunch of these Indians who are college educated, and they’re bringing lawsuits in the courts because they have money, and they have better lawyers!’
“Today it’s all about getting control of the Indians by over-regulating them. That’s what’s happening. This march toward getting the Indians under control, I believe, in the end will be the death of us,” Lombardi said.
[Update: On June 29, state lawmakers voted to allow the Agua Caliente Band of Cahuilla Indians, the Morongo Band of Mission Indians, the Pechanga Band of Luiseño Indians and the Sycuan Band of the Kumeyaay Nation to add a total of up to 17,000 slot machines. Union concessions were not included in the amended compacts, but Gov. Schwarzenegger and the tribes did sign separate “memorandums of agreement,” which provide minor concessions on workers’ compensation and problem gambling programs. The Assembly ratified the memorandums, but whether they are enforceable is unclear. As of CEM’s press time, the San Manuel Band of Mission Indians was yet to reach an agreement with the state.]
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