Federal Judge David Campbell last week ordered a full trial of the lawsuit brought by Arizona’s Tohono O’odham Nation against the state to force it to issue a Class III gaming permit to the tribe’s Desert Diamond West Valley casino in Glendale.
The judge declined to find in favor of the tribe, commenting that the state’s claims that the tribe committed fraud when it concealed its intention to build a casino in the Phoenix Valley during negotiations that occurred in 2003 between the state government and other Arizona gaming tribes prior to the adoption of the tribal state gaming compact that currently operates in the state. The state maintains that the tribe promised not to open a casino in the Phoenix Valley during those negotiations.
Currently the tribe operates four casinos, including the one in Glendale.
The compact limited casinos to tribal land, but did not consider the possibility that a tribe might acquire more land and put it into trust.
Congress voted to pay $30 million to the tribe as part of a land settlement when a dam of the Gila River inundated 10,000 acres of the tribe’s original reservation. The settlement gave the tribe the opportunity to buy new land in Pima, Pinal or Maricopa counties.
The casino opened last with Class II games only. The actual subject of the lawsuit is Arizona Gaming Director Daniel Bergin, who has refused to issue the tribe a Class III certification of its games.
Bergin argues that when the tribe signed the 2002 compact it deliberately hid its intention of buying land near Glendale and building a casino there. He says the tribe committed fraud.
Attorney Danielle Spinelli, who represents the tribe, says the state could have insisted on a compact that spelled out that the Tohono O’odham Nation could not expand its gaming presence outside of existing casinos in southern Arizona. “The state was a sophisticated party,” she said, “The negotiations went on for years.”
Judge Campbell commented about the ramifications of the case: “The compact does not prohibit the nation from building a casino in Phoenix. But neither does it expressly permit it.” The key to this might be what tribal officials told state negotiators in 2002, he said. The tribe did not make public its plans to buy land in Glendale until 2009.
Voters were told that the compact would not allow more casinos in the Phoenix area. Then Governor Jane Hull urged support of the compacts using that point. Bergin’s attorney argues that Hull would have urged rejection of the measure if she had known the tribe was hiding its intentions about building there.
On November 21 Governor Doug Ducey tried to craft a deal with the tribe before going to trial when he and several of the state’s gaming tribes signed agreements to begin renegotiating the old compact with a proviso that would have recognized the fact of the Glendale casino’s existence, while limiting its future expansion, and give the other gaming tribes expanded gaming opportunities.
One of those tribes, the Pascua Yaqui Tribe, through its chairman, Robert Valencia, commented, “The Pascua Yaqui Tribe appreciates Governor Ducey highlighting the need for modernization of the Arizona State-Tribal Gaming compacts. We look forward to working with him to do so,” adding, “We anticipate future good faith discussions with the Governor to craft a mutually beneficial agreement that will help Indian Country and all of Arizona.”
The Tohonos initially rejected Ducey’s offer but then clarified its stance, saying it would reconsider it if some clarifications were made.
Meanwhile, until the case is resolved, the tribe won’t be able to offer Class III gaming.
Arizona’s tribal casinos in 2014 reportedly generated in excess of $2.5 billion in gross revenues.
