Arizona Tribe Ordered to Produce Records in Trial

It is perhaps the first legal setback since the Tohono O'Odham Nation began its long journey to build the Desert Diamond West casino (l.) in Glendale, Arizona. Last week a federal judge ordered the tribe to produce records from 2002, when its leaders were negotiating the tribal state gaming compact that voters later approved. The tribe is appealing the order.

A federal judge has ordered the Tohono O’Odham Nation to produce secret deliberations that could show what the tribe’s leaders were saying among themselves in 2002 when they were telling fellow tribes and the public that they had no interest in developing a casino in the Phoenix Valley.

The tribe is appealing the ruling, claiming that the discussions are protected by legislative privilege.

The tribe is suing the state’s Gaming Director Daniel Bergin to force him to certify the Glendale casino it opened in December for Class III gaming. The state contends that the tribal defrauded the public in 2002 because it knew it intended to build a casino in Glendale even while it said in negotiations that it had no intention of doing so.

As the state seeks these records, it is fending off efforts by the tribe to question staff members of Governor Doug Ducey. The state’s attorneys argue that at least some of the testimony the tribe seeks is protected by attorney-client privilege.

In their filing with the court the state argues: “Any disclosure of internal discussions regarding the subpoena topics would have a chilling effect on future deliberations within the state executive branch,” and adds, “The executive branch — and especially the governor’s office — frequently have to make difficult decisions that affect state funding, public safety, and relations with various tribes located within Arizona. As a result, the executive branch must have the ability to openly discuss options and weigh recommendations without fear these internal communications become public for unnecessary scrutiny.”

The state also argues that Ducey’s staff should not be subject to questioning because he has only been governor since 2015, too late for him to know details of the 2002 negotiations.

The judge gave the tribe until the end of the month to respond as to why it thinks it is entitled to ask questions in those areas.

The judge is allowing tribal lawyers to question two former state employees, former Gaming Director Steve Hart and Mike Bielicki, an aide to then Governor Jane Hull when she was negotiating the 2002 tribal state gaming compacts.

The tribe wants to probe into whether Hull believed that the compacts prevented new casinos in the Phoenix Valley and how she came to believe that.

In 2002 the public voted for the state tribal gaming compacts that currently govern tribal gaming in the state.

The tribe is currently offering Class II gaming, which it can offer without any input from the state, but it wants to be able to deploy Class III Las Vegas style games.