U.S. District Judge David Campbell last week refused to issue a preliminary injunction ordering the state of Arizona to issue a license for the Tohono O’Odham Nation’s new Desert Diamond West Valley Casino Resort, near Glendale.
The tribe has sued the state to force the Arizona Department of Gaming to issue the license for its $200 million casino.
While that case remains active, the judge ruled that the tribe would not suffer irreparable harm if it wasn’t allowed to open a Class III casino since it can open a Class II casino without the state’s approval with about 1,000 machines. Class II casinos can offer bingo-derived slot games, but no table games.
Campbell wrote, “The Nation asserts that the state’s actions will cost it substantial sums of money, and that the money constitutes irreparable harm because it cannot be recovered from the state due to sovereign immunity. The court finds, however, that the Nation has not shown that the actions will cost it substantial sums.”
He allowed the case against Gaming Director Daniel Bergin to move ahead, but dismissed the tribe’s case against Governor Doug Ducey and Attorney General Mark Brnovich, who urged Bergin not to issue the license.
Meanwhile, the tribe has said it will open some kind of casino in December whether it wins its case or not. That’s because federal law allows tribes to build Class II casinos whether they have an agreement with the state or not if the same form of gambling is permitted elsewhere in the state.
Tribal attorneys have argued that Bergin is acting unlawfully in declining to issue a license for the casino. They claim he doesn’t have that authority under federal law and the tribal state gaming compact of 2002.
Bergin claims that the tribe engaged in fraud because it did not disclose in 2002 that it planned to open a casino in the Phoenix valley dispute while publically saying that it wouldn’t open such a casino. It made these statements during compact negotiations with other tribes and the state.
The voters then approved the compact in 2002. Bergin claims the voters did so under the belief that the tribe would not open a casino in the area. That was claimed in publicity materials that were widely disseminated during the election campaign. Specifically that casinos would only be built on existing Indian reservations.
The complication arises from the fact that the Tohono tribe purchased the land in Glendale with money given to it by the federal government in a 1986 land settlement in return for losing its reservation to inundation from a federal dam project.
Governor Ducey has said that the state might cancel its compact with the tribe over the issue.
One of the tribes that feels it was duped in 2002, the Gila River Indian Community, last week hailed what is probably the first time in several years that the Tohono have seen a legal setback. Gila River Governor Roe Lewis declared, “For years, the Nation has claimed that their position is invincible in court. The judge’s ruling shows otherwise, handing the Tohono O’odham a clear loss and changing the momentum of this case.”
Because of this alleged subterfuge, Bergin contends that he is acting under state law that admonishes his department to have “extensive, thorough and fair regulation of Indian gaming.” When Bergin does in fact have that authority is one of the issues that the court will determine.
