I’m on the late show with this one. This decision was decided by the Northern District of California on September 29, 2011. The decision, Larimer v. Konocti Vista Casino Resort, Marina & RV Park, involved the question of whether the overtime provisions of the Fair Labor Standards Act applied to employees of an Indian casino.
The plaintiff in this case sued his former employer, the casino, and Andrew Jack, the chairman of the Big Valley Pomo Pand of the Pomo Indians, who was also the CEO of the casino. Specifically, Mr. Jack was sued in his official capacity as a member of the tribe.
Essentially, during the year or so that plaintiff was employed by the casino, he worked more than 40 hours per week but never got paid overtime. So, he sued.
Tribal Sovereign Immunity
First, the court addressed whether the casino itself was entitled to claim the protection of sovereign immunity. The casino is wholly owned and operated by the Big Valley Pomo Band via one of its committees. Although not cited by court, but cited by the parties in their papers, casinos are considered arms of their respective tribes, pursuant to Cook v. Avi Casino, which I wrote about earlier. As such, the casino derives its immunity from the tribe.
Abrogation
Next, the court had to determine whether the casino’s immunity had been abrogated. The FLSA contains no provisions expressly dealing with Native Americans, their sovereignty, or whether it was abrogated, so the court could not conclude that the federal statute removed that sovereignty as a bar to the plaintiff’s claim.
Immunity of Andrew Jack
Lastly, the court addressed whether Mr. Jack, sued in his official capacity as a tribal member and employee of the casino, could derive sovereign immunity from the tribe. Here, Jack is both the tribal chairman and CEO of the casino. In his complaint, the plaintiff stated that Jack was in “economic and operational control” over the casino at the time the plaintiff was working without being paid overtime.
However, suing an employee of a tribally owned business in his or her official capacity will be barred by tribal sovereign immunity unless a party can show that person was not acting within the course and scope of their employment. As plaintiff stated in their own complaint, Jack was in “economic and operational control” of the casino, which precludes plaintiff’s claim against him.
Conclusion
So, the lesson here is that employees of an Indian casino are out of luck when they decide to work over 40 hours a week. One thing to note is that the plaintiff’s employment contract with the casino contained no provision that waived the tribe’s sovereign immunity, which helped. Waivers of sovereign immunity must be expressly stated and without any express provision otherwise in a contract, then sovereign immunity will triumph. One must be careful when entering into contractual relationships with any tribe.
