The battle over whether the Tohono O’odham Nation should open its 0 million Desert Diamond-West Valley resort and casino near Glendale, Arizona is either a case of a tribe that “was negotiating in bad faith – with the governor, and more importantly, with the other tribes,” as one side claims, or is one typified by “the pathetic irony of U.S. government officials attempting to lecture a native tribe about keeping promises,” as the tribe’s supporters assert.
The tribe is moving forward to open an interim casino on December 20. A second phase will include a permanent Las Vegas style casino and is planned to open n 2018. A third phase the following year would include a 400-room hotel.
Stephen Hart, former director of the Arizona Department of Gaming, who was one of the lead negotiators, along with then Governor Jane Dee Hull of a 2002 gaming compact between the state and its 17 gaming tribes, wrote last week that “the actions of a single tribe, however, threaten to undo the groundbreaking work that was done in 2002, and put the entire compact in jeopardy. Congress must right this wrong, support the integrity of the compact, and the will of Arizona voters.”
The compact, Hart writes, “met the needs of urban and rural tribes, large and small, those that were surviving and those that were struggling financially,” and “ensured well regulated gaming, and earned the support of voters.”
According to Hart, “Governor Hull’s policy could not have been clearer. She repeated one mantra over and over – Indian gaming should be limited, well-regulated, and not in the Phoenix area.”
Hart, along with several other gaming tribes and current and former state officials, contend that the Tohonos negotiated in bad faith with other tribes and snookered the voters. “Simply put, this compact would not have gone forward if the tribes or the state knew what the Tohono O’odham Nation was planning,” he wrote, echoing the Arizona Republic which accuses the tribe of running a campaign of “deceit and subterfuge.”
Hart is one of those urging Congress to pass the Keep the Promises Act (H.R. 308/S. 152), which would prevent the tribe from opening either a Class III casino or the Class II casino that it threatens to open if it is somehow prevented from opening a Class III facility. The bill would place that on hold until 2027.
The bill, which as of this week seemed to have only a narrow chance of passage, and the surety of a presidential veto if it does pass seems to be the most viable path that opponents have left to oppose the casino.
Hart called it the only remedy left to the tribe since it has been able to deflect other challenges through the claim of sovereign immunity. The most recent court victory occurred November 11 when a three-member panel of the 9th U.S. Circuit Court of Appeals ruled that a state law HB 2534 adopted several years ago that would have allowed the city of Glendale to annex the land to keep the tribe from putting it into federal trust violated the 1986 Act of Congress that authorized the tribe to use the settlement money to buy replacement land.
The ruling brought to 18 the number of favorable rulings the tribe has racked up in courts and appeals courts over the years.
Not so fast! say supporters of the tribe (and opponents of the H.R. 308), many of who, like writer E.J. Montini of the Republic consider it risible that white folks, and especially white folks in the government, would be accusing a tribe of breaking a promise.
The leaders in Congress who are pushing the bill including Representatives Trent Franks and Paula Gosar and Arizona’s two U.S. Senators, John McCain and Jeff Flake. Current Governor Doug Ducey also supports the bill.
Also urging passage are the Gila River and Salt River tribes, who both operate casinos in the area.
H.R. 308 appeared to be on life support this week after Arizona Rep. Raul Grijalva forced a formal vote on the bill, meaning that supporters failed to pass it by a voice vote. Requiring a formal vote meant that supporters needed a two-thirds majority to pass the bill on a fast track process that would beat the casino opening to the punch.
The vote to adopt the bill was 263 yes and 146 no with 25 abstentions.
Griljalva successfully argued that the bill should not be on the suspension calendar, which prevents a full debate or any amendments. He noted that the Congressional Office of the Budget has estimated that the bill could cost taxpayers $1 billion if the tribe decides to sue the federal government for lost revenues.
So far the bill itself is one of the most expensive ever to come before Congress in terms of money spent by lobbyists. Two gaming tribes who want to stop the casino from opening, the Salt River Pima-Maricopa Indian Community and the Gila River Indian Community, have spent more than $14 million so far in lobbying.
Tohono O’odham Nation Chairman Edward D. Manuel issued a statement calling for Congress to defeat the bill and applauding the vote so far. “Today, David beat Goliath again,” he wrote. “The special interests spent $17 million trying to rush this harmful bill through, but in the end it came down to the facts. The more that members of Congress examine this legislation, the more they recognize how harmful it is for Arizona workers, the Nation, and tribes across the U.S.”
Franks was unhappy about the vote. “I am disappointed that some of my colleagues voted to allow the Tohono O’odham tribe to disregard their end of the deal and dishonor their promise to the other tribes and to Arizonans,” he said.
The Gila River Indian Community, which operates three casinos, promised to continue to press for the bill’s passage, said spokesman Manuel Johnson. “Clearly, a strong majority of the U.S. House supports the Keep the Promise Act — as do tens of thousands of Arizonans and elected leaders across the state and the country.”
The tribe, which operates three other casinos in the state, purchased the Glendale land after being paid millions of dollars in a federal land settlement after a 1960 federal dam project inundated its tribal homeland. The federal government purchased nearly 10,000 acres from the tribe. The tribe used the settlement money to purchase the Glendale land under the radar and waited several years to announce that they intended to build a casino there.
The city of Glendale, which was party to several of the 18 or so court challenges to the tribe, dropped its opposition last year and cut a deal with the tribe to support the casino and oppose the Keep the Promise Act.
The city released the following statement recently, “We were not consulted on this legislation, and we stand together to affirm that those closest to the project are solidly in support of this development,” said the letter, adding, “Construction is well underway and our constituents are already benefiting from the 1,300 construction jobs and $200 million that will be invested during 2015. When the facility opens later this year, more than 500 new and permanent jobs will be created.”
However, one of the city council members who supported that deal was recalled from office on November 3, so the tide of opinion may be turning in the city.
However, Ray Malnar who replaced Gary Sherwood, a council member who first opposed and then supported the casino, has said that he won’t try to reverse the 4-3 council vote supporting the tribe’s construction of its casino.
Malnar voted last week as part of a 7-0 decision by the council to accept gaming revenues from the casino if it opens as a Class II facility. This may happen because so far the state’s Department of Gaming has refused to certify the tribe’s Class III slot machines. The state does not have regulatory authority over Class II machines. Malnar will complete Sherwood’s term, which has 10 months remaining and has filed paperwork to run for reelection.
