Arizona Gaming Director Daniel Bergin is asking for a court order to see the secret deliberations of the Tohono O’odham Nation from a dozen years ago when the tribe was contemplating buying land near Glendale, where is now has a casino.
The tribe has sued Bergin to force him to certify the casino’s slot machines so that it can offer Class III games but he has so far refused. In the lawsuit Bergin is defending his position by claiming that the tribe dealt with the state and its fellow tribes fraudulently, knowing that it was going to seek to build a casino in Glendale at the same time it was telling others that it had no plans to do so.
That was the period when the voters were told that no more casinos would be sought in the Phoenix Valley and that the 2002 compact they were asked to approve guaranteed that.
Bergin has asked U.S. District Court Judge David Campbell to order the tribe for closed door meeting notes going back to 2002. He is also asking the judge to instruct the tribal officials that they can’t refuse to answer questions about those meetings or how they reached the decision to buy the Glendale property and, most important: “the reason the nation kept its search for and purchase of land secret from the state.”
The tribe’s lawyers argue that tribal officials have “absolute privilege” for meetings in private. They also note that Bergin has said that he already knows enough to justify not certifying the Class III games.
The tribe argues, “Bergin should not be able to assert, on the one hand, that he has ‘uncontroverted evidence’ of fraud sufficient to deny certifications in connection with the West Valley resort and, on the other hand, argue that the nation is holding back evidence necessary to prove that fraud.”
The Glendale casino opened in December. The Tohonos bought the Glendale property in 2003 with money that the federal government paid it to compensate for the destruction of tribal land by flooding caused by a dam near Gila Bend.
The tribe created a shell company to hide its ownership. They only revealed the tribe’s purchase in 2009.
The tribe defends its right to have closed door meetings, comparing it to Congress, which sometimes has closed door meetings over issues of national security.
Bergin counters that executive sessions do not necessarily free a legislative body from being questioned.
Besides the state, The Gila River Indian Community and the Salt River Pima-Maricopa Indian Community both seek to prevent the Tohonos from operating a Class III casino. These tribes operate casinos in the Phoenix area.
The Tohonos have won court victory after court victory, often with the same federal judge they have now. But the judge has never been asked to rule on Bergin’s claim before.
In March the 9th Circuit Court of Appeals ruled that the tribe could conduct Class III gaming. However, that decision did not force Bergin to certify such games.
Meantime, opponents of the casino have pinned their hopes on a bill in both houses of Congress that would force the tribe to close the casino for the next 12 years.
