The Tohono O’odham Nation recently sued Arizona Governor Doug Ducey, state Attorney General Mark Brnovich and Director of the Arizona Department of Gaming Daniel Bergin, regarding the tribe’s West Valley Casino and Resort, now under construction in Maricopa County. The lawsuit came about due to Bergin’s comments that he did not need to issue the necessary approvals because the tribe “engaged in deceptive behavior” and did not meet the requirements to open a new gambling venue.
However, Brett Johnson, lead attorney for Ducey and Brnovich, told U.S. District Judge David Campbell the tribe cannot legally sue them. Johnson said only Bergin, who also is being sued, can issue such an order. Matthew McGill, Bergin’s lawyer, said Bergin does have authority to issue the casino gaming license but he noted Arizona is immune to tribal lawsuits filed to the federal court, and the tribe’s decision to name the three state officials individually instead of the state does not change that. He said states have the final say over casino gaming within their borders under the Indian Gaming Regulatory Act.
McGill said legally the tribe should claim Bergin’s refusal to license the new casino violates the terms of the tribal-state gaming compact of 2002. The compact and the voter-approved Proposition 202 set limits on the number and location of casinos, which voters believed would be limited to existing reservations. In 2009, the Tohono O’odham Nation bought land in Glendale which later was taken into federal trust, as compensation for losing a large portion of reservation land due to a federal dam project.
McGill said if the tribe sues claiming breach of contract, the state would counter-sue claiming fraud. That allegation is central to the tribe’s lawsuit over Bergin’s refusal to license the new casino, because in 2013 Judge Campbell ruled that although tribal officials did not reveal plans for a gambling venue during the 2002 contract negotiations, Arizona’s tribal gambling compact does not ban more tribal casinos from opening in the Phoenix metropolitan area.
Under the contract, the Tohono O’odham Nation agreed to pay Glendale $1.3 million a year for 20 years, make a one-time payment of $500,000 and donate $100,000 a year to the Glendale Convention and Visitors Bureau.
