Tribal leaders: Proposal violates tribal sovereignty
HARTFORD, Conn. – A new front on the battle to maintain tribal sovereignty has opened up in Connecticut.
Flush with energy from a recent successful United Auto Workers union vote, Foxwoods Resort Casino dealers are pushing a state Senate bill to ban smoking at Connecticut’s two tribal casinos.
Representatives of the Mashantucket Pequot Tribal Nation and the Mohegan Tribe, owners of Foxwoods and Mohegan Sun, respectively, say it’s beyond the state’s jurisdiction to impose such a ban on sovereign tribal nations.
The bill was the subject of a day-long public hearing in the Legislature on Feb. 29. Introduced by Democratic Sen. Mary Ann Hadley, who chairs the Public Health Committee, the bill seeks to repeal a current liquor permit exemption that allows smoking at both Foxwoods and Mohegan Sun. The exemption was part of a 2003 state law that, recognizing tribal sovereignty, banned smoking at restaurants and bars everywhere else in Connecticut.
Foxwoods casino workers who are pushing the bill forward say their main concern is the health of casino workers and patrons from secondhand smoke.
The tribes say they are not inured to the health issues, but the appropriate forum to address them is within tribal laws and legislatures.
The Foxwoods dealers won a UAW union vote conducted under the National Labor Relations Board in November, but the vote has not been certified. The Mashantuckets have challenged the federal jurisdiction, arguing that the union election should have been conducted under tribal law, not federal law – a sovereignty argument that Mashantucket leaders have promised to take to the highest courts.
The Mohegan Tribal Council issued a statement saying that the proposed smoking ban is ”an inappropriate assault on the
principles and laws that govern the relationship between the state of Connecticut and the Indian Tribes of Connecticut. The General Assembly cannot circumvent the compact between the state of Connecticut and federal laws recognizing the Mohegan Tribe and its sovereign rights.”
The Jerome N. Frank Legal Services Organization at Yale Law School, which links law students with individuals and organizations in need of legal help who cannot afford private attorneys, provided the UAW workers with legal support.
The organization issued a memo offering five arguments in support of the bill, claiming justifications under state and federal laws as well as the tribal-state compacts. But the arguments entirely ignored tribal sovereignty.
”No law anywhere privileges tribal casinos to sell alcohol under terms and conditions any different than those that govern public accommodations elsewhere in Connecticut. Under tribal-state compacts, and under controlling federal law, Connecticut liquor laws apply. If Connecticut liquor laws ban smoking as a condition of holding a liquor license, the tribal casinos must comply, or give up their license to sell liquor,” the organization said.
Testifying at the hearing, MPTN General Counsel Jackson King said the nation long ago joined the national trend toward eliminating smoking in public places. Foxwoods bans smoking in most nongaming areas and some gaming areas, and it’s probably ”only a matter of time” before smoking is severely limited or entirely prohibited everywhere, King said.
He noted that the tribal-state compact was carefully written to apply state laws strictly to ”the sale and distribution of alcoholic beverages.”
”Thus, we are dealing with the clever argument that the state can attempt to impose its laws or regulations on the tribes not directly, but by putting them in the form of liquor law and then threaten to revoke the tribe’s liquor licenses if those laws are not obeyed,” he said, adding that the compact says the tribes are ”entitled” to a liquor license and any revocation of a license would be a compact violation.
The state is only considering the proposal because the union is attempting ”to exercise its influence,” but the effort could result in ”serious ramifications,” King said.
Mashantucket and Mohegan contribute 25 percent of gross slot machine profits to the state – an annual boost of more than $450 million on which the state has come to depend.
”We urge the Legislature to consider the effect of the state’s breach of its obligation under the compact. Would such a breach excuse the tribe from honoring its obligations under the compact? Such would be the normal result of a contract breach,” King said.
He said that a federal court would be the appropriate place to resolve such a dispute, but that would be ”regretful”; instead, the tribal nation noted ”the sensible comments” of state Attorney General Richard Blumenthal that ”negotiation and dialogue is the safer, quicker, and most economical way to approach the subject.”
Attorney Douglas Luckerman, of Lexington, Mass., who specializes in Indian law, pointed to the principles of tribal sovereignty.
”It is accepted around the world that sovereign governments are entitled to make decisions according to their own rules and procedures, likes and dislikes,” he said. ”We respect their decisions, even if we do not agree with them. Enacting legislation solely designed to restrict the rights of another sovereign is wholly outside the rights of this state, regardless of the motivation for the intrusion.”
