An Arizona tribe that sued the state gaming director to be allowed to deploy Class III games may have shot itself in the foot instead by throwing away its sovereign immunity.
The Tohono O’odham Nation has already opened a Class II casino near Glendale in the Phoenix Valley. Its right to do that is no longer in question and has been upheld by the courts many times. However, when the tribe sued Gaming Director David Bergin for refusing to issue the necessary certifications to offer Class III game such as blackjack and poker U.S. District Judge David Campbell ruled that the tribe waived its immunity from lawsuit.
That opens up the court to hearing arguments from Bergin defending his refusal to grant the certifications, i.e. that the tribe acted fraudulently in 2002 when it negotiated a tribal state gaming compact and assured state and other tribal officials and the public that it would not try to build a casino in the Phoenix Valley—even while it planned to do so.
Tohono O’odham Tribal Chairman Edward Manuel shrugged off the ruling as a minor glitch, since a federal appeals court has already ruled that the compact as written allows the casino to open, no matter what its signatories said they thought it meant at the time.
However that’s not the issue before Judge Campbell’s court. That issue is whether Bergin has the right to say that the tribe’s statements and actions in 2002 amounted to fraud and that for that reason he has declared the tribe unfit to operate a casino. At the heart of that is whether the voters were duped to approve of the compacts that year. Bergin points to specific literature that was disseminated in 2002 that claimed that under Proposition 202 no more casinos would be permitted near Phoenix. The governor of the time, Jane Hull, made such statements in support of the proposition, including that casinos would be limited to existing reservations.
The tribe concedes to having paid for this brochure, but says it was written by a public relations firm that wasn’t using legalisms in preparing the argument, or as it puts it “did not necessarily seek to depict the compact with legal precision.’’
Bergin has presented in evidence notes from O’odham Tribal Council tribal council meetings that refer to buying land near Phoenix and putting it into a “shell company” so that the tribe’s interest in the area would be hidden while it was engaged in negotiations.
The tribe acquired the money to buy the land when its original reservation was inundated by flooding created by the Painted Rock Dam on the Gila River in the 1960s. Two decades later Congress voted the tribe $30 million to buy new land.
The year after Proposition 202 passed the tribe purchased the land near Glendale, something that didn’t become known until 2009 when the tribe petitioned the Bureau of Indian Affairs to put the land into trust.
Generally speaking, without state consent a tribe can only offer Class II gaming, which the tribe is doing now.
