The U.S. Senate Committee on Indian Affairs last week moved forward on a bill that would prevent the Tohono O’odham tribe from operating a casino in Glendale, Arizona, near Phoenix.
The bill, called the Keep the Promise Act, is being carried by the state’s two U.S. Senators, John McCain and Jeff Flake. An identical bill is also moving forward in the House, where the House Natural Resources Committee approved it last month.
It seeks to prevent the Tohonos from operating the $400 million West Valley Resort on land the Bureau of Indian Affairs put into trust almost a year ago. The tribe is currently in construction and could complete the building by early 2016. The bill would prevent its operation until 2027, when the current tribal state gaming compact runs out.
The casino is opposed by the state of Arizona, and the two tribes whose market would be pierced by the rival operation: the Gila River Indian Community and the Salt River Pima-Maricopa Indian Community. All have been unsuccessful in challenging the casino in federal court.
They claim that the tribe abused the process of the state tribal gaming compacts that were approved by the voters in 2002. The compacts were sold to the voters with the promise that no new casinos would be built in the Phoenix metropolitan area. There are currently five tribal casinos in the Phoenix valley. At that time the tribe made the promise, they claim, it was in the process of acquiring the land near Glendale as part of a federal land settlement the tribe was paid in compensation for its lands being inundated by a dam project.
A federal judge has ruled that the compact the voters approved did not stipulate no new casinos near Phoenix. However, the tribes involved claim that the O’odhams in 2002 gave them and the state of Arizona assurances that they wouldn’t build in that area—at the same time that they were secretly negotiating to buy land there.
Gila River Governor Stephen Roe Lewis claims the tribe’s action puts at risk the state tribal gaming compact. “The Keep the Promise Act is important not only for what it does, but as a symbol that the tribes in Arizona do take their promises seriously and are willing to fight to keep them,” he said last week.
McCain asserts that the tribe is circumventing the intent of the Indian Gaming Regulatory Act of 1988. “The intent of the law specifically was not to allow a tribe to parachute into the middle of a city and set up a casino,” he said in an interview with The Hill. “I know the intent of the law because I wrote it.”
Tohono O’odham chairman Ned Norris Jr. has attacked the Senate bill, claiming that it would, “create a no-competition zone for two politically-well connected, wealthy tribes.” He added, “I used to think that when people in Congress read the court decisions they would see that the Nation has played by the rules every step of the way. But the more we win in court, the harder Congress tries to rewrite the rules.”
All three tribes have spent a combined $16 million plus in lobbying in the last three years, since talk of a bill first surfaced. The Gila River Indian Community spent $3.7 million last year, compared to $560,000 for the Salt River tribe, and $1.6 million by the Tohonos. Gila River’s lobbyist army is considered to be the largest currently operating in Washington D.C.
The Tohonos have begun increasing their own spending this year. The first quarter of 2015 they spent $410,000 in lobbying efforts.
Some see this battle fought with checks to lobbyists a replay of similar efforts in the era of corruption made infamous by “Casino Jack” Abramoff, who served 43 months in federal prison for influence peddling that centered on his access to $40 million that he had access to from Indian gaming operators. His goal was to prevent competition from other tribes.
If the bill passes, and survives a possible veto from President Obama, the Congressional Budget Office has projected that it could cost the federal government as much as $1 billion if the tribe sues to be compensated for not being allowed to operate a casino. The CBO compares this to an eminent domain process, that legally speaking could amount to a “taking” of the tribe’s rights.
An opponent of the bill, Rep. Raúl Grijalva declared last week, “Court after court has said that there’s nothing in the compact that prevents the tribe from opening this casino. “Let it run its course judicially and through the administrative process. That should be the arbitrator in the end.”
Another opponent, Rep. Tom McClintock recently repeated a sentiment he has expressed many times, “It breaks a very clear, legal promise made by the government of the United States.”
U.S. Senator Jon Tester, vice chairman of the Senate Committee on Indian Affairs, was very critical of the bill, which, he said, would put tribes all over the country on notice that they can’t trust the federal government to keep its word.
He noted that the bill would unilaterally amend the 30-year old land settlement agreement with the tribe.
Norris agreed, adding, “This legislation hearkens back to an era of broken treaties and false promises. After the Nation has consistently followed the law, it is shameful for the Senate to consider breaking the federal government’s word, and placing taxpayers on the hook for this special interest earmark.”
But Salt River President Delbert Ray Sr. insists that stopping the casino is also about keeping promises: “Enactment of this bill will reaffirm the gaming policy approved by Arizona voters in 2002, that there will be no additional casinos in the Phoenix metropolitan area.” He added, “Additionally, this legislation is consistent with the state’s position that principles of fraud and misrepresentation nullify any contention that the Tohono O’odham Nation may create a new casino reservation in the middle of Glendale, at a site across the street from a public high school.”
State gaming Director Daniel Bergin has indicated that he may not certify the casino’s gaming devices. In a statement earlier this month he said, “In February of this year, I first raised concerns to Tohono O’odham about the construction of their proposed West Valley Casino and the Department of Gaming’s ability to give regulatory approval to that casino. After receipt of opposition from Tohono O’odhams lawyers I sought out a legal opinion from the Arizona Attorney General’s office to ensure the validity of my concerns. While awaiting confirmation, we reiterated to the tribe that we, in good faith, would continue to proceed with regulation as normal.”
Meanwhile, a member of the Glendale city council who led the city’s reversing its long opposition to the casino faces a recall attempt.
A group seeking the recall of Councilman Gary Sherwood has filed petitions that, if they have gathered the required 2,752 valid signatures could force him to defend his seat in a November election. Maricopa County has until June 28 to verify the signatures.
According to Ann Lee, a leader of the recall effort, “Sherwood has flip-flopped on or reversed major policy decisions he took during his 2012 campaign, so that voters have been misled and not represented properly.”
In 2012 Sherwood opposed the casino and then changed his mind once it became a fait accompli, he has said. He then joined a majority of the council in working out a government-to-government agreement with the tribe to pay the city $26 million over two decades.
The councilman declared that he would fight the recall. “Of course I will fight it if it comes down to it,” he said. Sherwood is considering a run for mayor.
