U.S. District Court Judge David Campbell recently stated several concerns about the refusal of Daniel Bergin, director of the Arizona Department of Gaming, to issue the required state certification for Class III gaming to the Tohono O’odham Nation, which recently opened its Glendale casino late last year with Class II games. Bergin claims the tribe fraudulently hid its intent from voters who approved the casino, although that issue that was not part of Campbell’s earlier rulings.
Campbell noted, “The court also finds troubling the notion that a state regulatory body could join in a privilege-protected partnership with one of the entities it regulates to thwart expansion of another entity it regulates, whether or not the regulatory body has a valid basis for opposing the expansion. That appears to be what is happening here.’’
Campbell stated the Gila River Indian Community, as owners of the Gila River Casinos in Chandler, has a financial interest in limiting the type of gambling that takes place at the Tohono O’odham casino, 26 miles away. But he pointed out Bergin is supposed to regulate the activities of both tribes. Meanwhile Bergin argued his lawyer could send letters to the Gila River Indian Community’s lawyer about how he was trying to block Class III gambling in Glendale, and not have to disclose what was in the letters. Campbell rejected that, stating there is no legal basis for Bergin’s claim it is not subject to disclosure.
Furthermore, Campbell said it’s no surprise that the Tohono O’odham would to want to know exactly what Bergin and his attorney told the Gila River community. He noted Bergin’s office sent a letter last year to the state Department of Liquor Licenses and Control suggesting it seek out liquor law violations at other Tohono-run casinos before issuing a liquor license for the new Glendale site. The state has not issued the new license to date.
Bergin also asked the Congressional Budget Office to repeal a 1986 law allowing the tribe to originally buy the land and have it placed in federal trust for a casino. Bergin told federal officials he believes the tribe defrauded the state and therefore the federal government would not be liable if the law were to be voided. But the CBO told federal lawmakers if the 1986 law were repealed, the tribe could sue and potentially get up to $1 billion. The issue was dropped.
Campbell acknowledged “Director Bergin’s interest is not commercial,’’ and it’s not up to him to determine if Bergin has acted illegally. However, the judge said he can order Bergin to allow the Tohono O’odham to see what’s in the letter to the Gila tribe’s lawyer.
Tohono Chairman Edward Manuel said his tribe “shares the same concerns raised by Judge Campbell’’ and remains ” confident of a positive outcome in this case.’’
A spokesperson said Bergin would not comment on Campbell’s order.
