[Senate Hearing 113-506]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 113-506

                 S. 2670, KEEP THE PROMISE ACT OF 2014

=======================================================================

                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 17, 2014

                               __________

         Printed for the use of the Committee on Indian Affairs




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                      COMMITTEE ON INDIAN AFFAIRS

                     JON TESTER, Montana, Chairman
                 JOHN BARRASSO, Wyoming, Vice Chairman
TIM JOHNSON, South Dakota            JOHN McCAIN, Arizona
MARIA CANTWELL, Washington           LISA MURKOWSKI, Alaska
TOM UDALL, New Mexico                JOHN HOEVEN, North Dakota
AL FRANKEN, Minnesota                MIKE CRAPO, Idaho
MARK BEGICH, Alaska                  DEB FISCHER, Nebraska
BRIAN SCHATZ, Hawaii
HEIDI HEITKAMP, North Dakota
        Mary J. Pavel, Majority Staff Director and Chief Counsel
              Rhonda Harjo, Minority Deputy Chief Counsel
              
              
              
              
              
              
              
              
              
              
              
              
              
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on September 17, 2014...............................     1
Statement of Senator Barrasso....................................     2
Statement of Senator McCain......................................     2
Statement of Senator Tester......................................     1

                               Witnesses

Mendoza, Hon. Gregory, Governor, Gila River Indian Community; 
  accompanied by Allison C. Binney, Partner, Akin Gump Strauss 
  Hauer & Feld LLP...............................................    10
    Prepared statement...........................................    12
Norris, Jr., Hon. Ned, Chairman, Tohono O'odham Nation...........    35
    Prepared statement...........................................    36
Sherwood, Hon. Gary, Councilman, City of Glendale, Arizona; 
  accompanied by Hon. Sammy Chavira, Councilman, City of 
  Glendale, Arizona..............................................    30
    Prepared statement...........................................    32
Washburn, Hon. Kevin, Assistant Secretary--Indian Affairs, U.S. 
  Department of the Interior.....................................     3
    Prepared statement...........................................     5
Weiers, Hon. Jerry, Mayor, City of Glendale, Arizona.............    27
    Prepared statement...........................................    29

                                Appendix

Beauty, Hon. Thomas, Chairman, Yavapai-Apache Nation, prepared 
  statement......................................................    68
Counts, Sherry J., Chairwoman, Hualapai Tribe, prepared statement    70
Gaamez, Hon. Adolfo F., Mayor, City of Tolleson, Arizona, 
  prepared statement.............................................    66
Hart, Robert, Executive Vice President, Hunt Construction Group, 
  prepared statement.............................................    75
Insalaco, Hon. John, Mayor, City of Apache Junction, Arizona, 
  prepared statement.............................................    65
Kavanagh, Hon. Linda, Mayor, Town of Fountain Hills, Arizona, 
  prepared statement.............................................    67
Letters submitted for the record 



 
                 S. 2670, KEEP THE PROMISE ACT OF 2014

                              ----------                              


                     WEDNESDAY, SEPTEMBER 17, 2014


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:15 p.m. in room 
628, Dirksen Senate Office Building, Hon. Jon Tester, 
Chairman of the Committee, presiding.

             OPENING STATEMENT OF HON. JON TESTER, 
                   U.S. SENATOR FROM MONTANA

    The Chairman. The Committee will come to order.
    Today we are holding a hearing at the request of Arizona 
Senators McCain and Senator Flake on S. 2670. The bill would 
address an issue specific to Arizona, but one that could have 
broader implications for this Committee. It will affect the 
role of Congress with regard to gaming compacts between tribes 
and States.
    The Indian Gaming Regulatory Act affirmed the authority of 
tribes to conduct gaming on the reservations. It specifically 
required States and tribes to negotiate gaming compacts. The 
Act further requires the Department of Interior to approve or 
disapprove these compacts.
    The Act provided no further role for Congress in this 
process. I think most of the members of the Committee would 
agree that is a good thing.
    The State of Arizona and the tribes within the State 
entered into a compact, which was voted on and passed through a 
statewide vote in 2002. Now, however, the tribes within the 
State and some municipalities disagree on what the vote 
approved. Senator McCain was highly involved in the drafting 
and the passage of both the Indian Gaming Regulatory Act and 
the Gila Bend Indian Reservation Lands Replacement Act. These 
acts formed the basis of the issue that S. 2670 would address.
    We heard witness testimony on this issue earlier this year. 
And now we have called the stakeholders back to discuss the 
specifics of this legislation. We have also invited the 
Administration to get their perspective. Welcome, Kevin.
    Overall, this Committee wants to ensure that any action 
taken on this specific issue doesn't have broader impacts for 
tribes across the Country.
    Senator Barrasso, do you have an opening statement?

               STATEMENT OF HON. JOHN BARRASSO, 
                   U.S. SENATOR FROM WYOMING

    Senator Barrasso. Thank you, Mr. Chairman. In the interest 
of time, I will keep the statement brief. We will consider S. 
2670, the Keep the Promise Act of 2014, introduced by Senators 
McCain and Flake. The complexity of issues involved in this 
issue should be fully examined by the Committee.
    I appreciate my colleague Senator McCain's leadership on 
the matter. I want to welcome the witnesses to the hearing 
today and look forward to the testimony. Thank you, Mr. 
Chairman.
    The Chairman. Senator McCain.

                STATEMENT OF HON. JOHN McCAIN, 
                   U.S. SENATOR FROM ARIZONA

    Senator McCain. First of all, Mr. Chairman, in this busy 
last week, I want to thank you for allowing time for this 
hearing. I appreciate it more than I can tell you. This is a 
really huge issue in my State, particularly in the Phoenix 
metropolitan area.
    I was, with the late Senator Dan Inouye, heavily involved 
for many months as we put together the Indian Gaming Regulatory 
Act. We received witness after witness, particularly from 
various States that had large Native American communities, that 
said, look, we are all for Indian gaming. But we don't want it 
on land that is not contiguous to the Indian reservations. They 
said, we want it to be fair to Native Americans, but we also 
want it to be fair to the citizens of non-Indian Country that 
they can be assured that Indian gaming casinos won't show up in 
the middle of their communities.
    I can assure you, and I can assure the witness, it was 
never the intent of Senator Inouye and I, through weeks and 
months of hearings, to have air-dropped, no matter what 
rationale you are using for it, because of some settlement, to 
have reservations that have non-contiguous Indian gaming air-
dropped in the center of a metropolitan city without at least 
the people of that area being allowed to vote on it, at least.
    But the fact is, it was never the intent of the law, and 
what you are about to do, Mr. Washburn, is to violate the 
intent of the law. Quite often around here we hear about 
legislation and people talk about the intent of Congress. I am 
telling you the intent of Congress, because it was called the 
Inouye-McCain Act. And it was a great Act. In light of the 
Cabazon decision, it was mandatory that the United States 
Congress act.
    I am proud of that Act, and I am proud of the benefit that 
it has accrued to Indian Country. I am proud that there has 
been revenue sharing between, as there is in our State of 
Arizona, between the gaming tribes and the State of Arizona and 
the contribution they have made. I never contemplated air-
dropping in the middle of Glendale, no matter what the 
rationale was for, an Indian gaming operation.
    So I want to make it clear, Mr. Chairman, what the intent 
of the law was. Because I was one of the two authors.
    I thank you, Mr. Chairman.
    The Chairman. Thank you, Senator McCain and Senator 
Barrasso, for your comments.
    Now I want to call up our first witness, Mr. Kevin 
Washburn, the Assistant Secretary for Indian Affairs at the 
Department of Interior. Kevin, you have been with us many 
times, we always look forward to hearing the Administration's 
thoughts on these issues. The Committee knows you are busy. So 
we will try to get through with your portion of the testimony 
as soon as possible. We will have some questions.
    We appreciate your time. Thank you for being here today. 
You may proceed.

          STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT 
       SECRETARY--INDIAN AFFAIRS, U.S. DEPARTMENT OF THE 
                            INTERIOR

    Mr. Washburn. Thank you, Mr. Chairman. And thank you, Mr. 
Vice Chairman and Senator McCain. Thank you for having me here 
today.
    Maybe I shouldn't be thanking you. This is a difficult 
issue and I find myself nervous today, and I guess it's because 
I never like to disappoint my friends. There are no more 
passionate tribal leaders in the Country that I know of that 
than Greg Mendoza and Diane Enos. They are probably here in the 
room. And yet, we find ourselves being asked to, being forced 
to provide our perspective on this bill.
    I have to tell you that I am not really happy to be here, 
but when pushed, I will tell you what I think about this bill. 
I believe that the Tohono O'odham Nation has an expectation of 
land in Maricopa County or in Pinal or Pima County, and they 
have had that expectation for nearly 30 years now, based on the 
Gila Bend Act.
    And they came by that expectation righteously. We assured 
them that we wouldn't flood their lands in the San Lucy 
District back in 1960 when we started working on a dam. And we 
proceeded to do just that. We flooded those lands. And they 
came to Congress and looked for a settlement, given the fact 
that their expectations didn't come out a they should have with 
regard to the dam.
    So Congress enacted the Gila Bend Act and promised them 
land, up to 10,000 acres in three counties in Arizona, central 
Arizona, so long as it was not within an incorporated 
municipality. And that was their expectation and that is the 
Gila Bend Act. Congress was well aware of gaming at the time 
the Gila Bend Act was passed. It didn't include any 
prohibitions on Indian gaming. Indian gaming was a robust 
industry by that time and the very next year it ended up in the 
U.S. Supreme Court in the Cabazon case. Cases don't just arrive 
in the Supreme Court, they go through multiple levels before 
they reach the Supreme Court.
    So this was, again, well known to Congress. There had 
already been hearings before Congress on Indian gaming and it 
was well known at the time the Gila Bend Act was passed.
    Then shortly thereafter, in 1988, Congress enacted the 
Indian Gaming Regulatory Act, that Senator McCain spoke 
eloquently about. This Indian Gaming Regulatory Act did not 
mention Tohono O'odham and it indeed included a specific 
provision that allows an exception to the prohibition on gaming 
after the enactment of IGRA, on lands acquired after that time, 
included a specific provision that essentially speaks right to 
the situation involving the Gila Band parcel.
    So Tohono O'odham had an expectation, a reasonable 
expectation that this land, which was certainly thought to be 
for economic development, that they would be able to game on 
this land.
    I think a more practical perspective is also in order. I 
hear over and over that gaming distributes resources unfairly 
because it creates tribes that are haves and tribes that are 
have nots. Despite the popular conception, most tribes don't 
have gaming. Most tribes don't benefit in any way from gaming.
    Gaming was being strongly encouraged when the Gila Band Act 
was passed. Ronald Reagan's Department of the Interior was 
strongly trying to get tribes to increase gaming, because that 
would increase self-sufficiency for tribes. And when Ronald 
Reagan signed the Indian Gaming Regulatory Act in 1988, he said 
he was supporting the statute because he wanted tribes to be 
more financially independent, more self-sufficient.
    And I come over to this Committee all the time and I get 
beat up because some members of this Committee think that the 
Administration is not asking for enough money from the 
taxpayers for Indian tribes. And maybe we aren't. But this 
action by Tohono O'odham to try to open up this casino is their 
effort to provide for their own people. And it is clearly 
allowed by existing law. Certainly that issue has been 
litigated over and over. That is what Judge Campbell, a 
Republican appointee, found when he looked at this issue.
    Let me add, too, that when gaming began in the Valley of 
the Sun, the population of the Phoenix metropolitan area was in 
a neighborhood of 2 million people. Today the metro area 
exceeds 4.3 million people. Surely there is enough room in this 
vast market for another tribe to benefit from gaming, 
especially an impoverished tribe. Last I checked, despite the 
recession and everything else that has been going on, Phoenix 
is still one of the fastest-growing cities in the Country. 
Again, surely in the fastest-growing cities, there is an 
opportunity for a growing gaming market, and opportunity for 
one more tribe to benefit from this vast market.
    The promise referenced in the title of S. 2670 is kind of 
ironic. It is not one that is known to me, and it certainly is 
not a Federal promise. The Federal promise was to take land 
into trust for Tohono O'odham anywhere in Pima, Pinal or 
Maricopa Counties, so long as it was not within an already-
incorporated area of a municipality. In my mind, our trust 
responsibility demands that we keep our Federal promises. We 
have broken a lot of treaties and we have broken a lot of 
Federal promises to Indian people in the past. The only promise 
by the United States that is at issue here today is the one 
made in the Gila Bend Act. The only way the Federal Government 
can keep its promise to the Tohono O'odham is for this 
Committee to reject this bill.
    The Tohono O'odham property near Glendale presents an 
opportunity for another Indian tribe to share the wealth and 
open a new part of this gaming market. In the tight fiscal 
environment, that kind of economic development should be an 
imperative. Opening this facility would help make President 
Ronald Reagan's dream come true of using gaming to lift tribes 
out of poverty and help make them more self-sufficient.
    I will stand for your questions. Thank you, Chairman.
    [The prepared statement of Mr. Washburn follows:]

Prepared Statement of Hon. Kevin Washburn, Assistant Secretary--Indian 
                Affairs, U.S. Department of the Interior
    Good afternoon, Chairman Tester, Vice-Chairman Barrasso, and 
Members of the Committee. My name is Kevin Washburn. I am the Assistant 
Secretary for Indian Affairs at the Department of the Interior 
(Department). I am here today to provide the Department's testimony on 
S. 2670, the Keep the Promise Act of 2014, which is a bill that if 
enacted would prohibit Class II and Class III gaming activities on 
lands, within a defined ``Phoenix metropolitan area,'' acquired in 
trust by the Secretary of the Interior for the benefit of an Indian 
tribe after April 9, 2013, and until January 1, 2027.
    S. 2670 does not specifically identify a tribe or amend a 
particular law, but because of the subject matter of the bill, the 
Department concludes that this bill has a similar effect as a bill 
introduced in the 112th Congress involving the Tohono O'odham Nation 
(Nation) and the Nation's 53.54 acre parcel in Maricopa County, 
Arizona, which the Department has acquired in trust for the Nation 
pursuant to the Gila Bend Indian Reservation Lands Replacement Act 
(Public Law 99-503) (Gila Bend Act).
    Because S. 2670 would amend the Gila Bend Act in a manner that 
significantly undermines the promises made by the United States in the 
Gila Bend settlement, the Department opposes S. 2670.
Gila Bend Indian Reservation Lands Replacement Act
    The Nation is a federally recognized tribe located in southern and 
central Arizona. It has approximately 30,000 enrolled members, and has 
one of the largest tribal land bases in the country.
    The San Lucy District is a political subdivision of the Nation. It 
was created by Executive Order in 1882 and originally encompassed 
22,400 acres of land. In 1960, the U.S. Army Corps of Engineers (Corps) 
completed construction of the Painted Rock Dam on the Gila River. Prior 
to construction, the Bureau of Indian Affairs (BIA) and the Corps 
assured the Nation that flooding would not impair agricultural use of 
lands within the San Lucy District.
    Despite these assurances, construction of the dam resulted in 
continuous flooding of nearly 9,880 acres of land within the San Lucy 
District, rendering them unusable for economic development purposes. 
Included among the destruction was a 750-acre farm that had previously 
provided tribal revenues. The loss of these lands forced a number of 
the Nation's citizens to crowd onto a 40-acre parcel of land.
    Congress first moved to remedy the plight of the Nation's San Lucy 
District in 1982, when it directed the Secretary of the Interior to 
study the flooding and identify replacement lands within a 100-mile 
radius. After attempts to find replacement lands failed, Senators Barry 
Goldwater and Dennis DeConcini, along with then-Congressmen John McCain 
and Morris K. Udall, sponsored legislation to resolve the situation. In 
1986, Congress enacted the Gila Bend Act to redress the flooding and 
loss of the Nation's lands.
    The Gila Bend Act authorized the Nation to purchase private lands 
as replacement reservation lands and directed the Secretary of the 
Interior to take up to 9,880 acres of unincorporated land in Pima, 
Pinal, or Maricopa Counties into trust for the Nation, subject to 
certain other requirements. In addition, Congress mandated that the 
land ``shall be deemed to be a Federal Indian Reservation for all 
purposes.'' In the accompanying 1987 agreement between the federal 
government and the Nation, the Nation gave up its right and title to 
9,880 acres of land and approximately 36,000 acre-feet of federal 
reserved water rights.
    Eventually, the Nation purchased a 53.54 acre parcel in Maricopa 
County, Arizona, and requested that the Secretary acquire the land in 
trust pursuant to the Gila Bend Act. On July 23, 2010, Assistant 
Secretary Echo Hawk issued a letter to Ned Norris, Jr., Chairman of the 
Tohono O'odham Nation, stating that the Nation's request for the trust 
acquisition of this parcel satisfied the legal requirements of the Gila 
Bend Act and that the Department was obligated to, and therefore would, 
acquire the land in trust pursuant to Congressional mandate. This 
decision was remanded to the Department by the United States Court of 
Appeals for the Ninth Circuit for further consideration of the meaning 
of section 6(d) of the Act. On July 3, 2014, I made a final agency 
determination on behalf of the Department to acquire the parcel in 
trust for the Nation. The land was acquired in trust--as required by 
law--on July 7, 2014.
S. 2670
    S. 2670, the ``Keep the Promise Act'' would prohibit Class II and 
III gaming on any lands taken into trust for an Indian Tribe by the 
Secretary of the Interior, if those lands are within the ``Phoenix 
metropolitan area,'' as defined in Section 3 of S. 2670. The 
prohibition of Class II and Class III gaming on such lands taken into 
trust for an Indian Tribe would retroactively begin April 9, 2013, and 
expire on January 1, 2027. S. 2670 would negatively impact the Nation's 
``all purposes'' use of selected lands under the Gila Bend Act by 
limiting the Nation's ability to conduct Class II and Class III gaming 
on such selected lands.
    Congress was clear when it originally enacted the Gila Bend Act in 
1986, in which it stated that replacement lands ``shall be deemed to be 
a Federal Indian Reservation for all purposes.'' By this language, 
Congress intended that the Nation be permitted to use replacement lands 
as any other tribe would use its own reservation trust lands, namely 
``for all purposes'' and presumably to include economic development.
    The Gila Bend Act was intended to remedy damage to the Nation's 
lands caused by flooding from the construction of the Painted Rock Dam. 
The United States and the Nation agreed to the terms of the Gila Bend 
Act, which included restrictions on where and how the Nation could 
acquire replacement lands. S. 2670 would specifically impact the 
Nation's Gila Bend Act by imposing additional restrictions beyond those 
agreed upon by the United States and the Nation 25 years ago. The 
Department cannot support legislation that specifically impacts an 
agreement so long after the fact.
    While the purpose of S. 2670 would be to restrict the Nation from 
conducting gaming on the 53.54 acre parcel in Maricopa County, Arizona, 
the effect of S. 2670 is even broader. It would seem to reach most or 
all of the remaining selectable lands under the Gila Bend Act.
    S. 2670 would also alter established law that prohibits gaming, 
authorized under the Indian Gaming Regulatory Act (IGRA), on lands 
acquired by the Secretary into trust for the benefit of an Indian tribe 
after October 17, 1988, except in certain circumstances. The effect of 
this legislation would be to add a tribe-specific and area-specific 
limitation to IGRA.
    Finally, the bill would unilaterally amend Arizona's tribal gaming 
compacts without the mutual consent of the Tribes and the State. The 
language of the bill specifically and unilaterally modifies substantive 
terms such as Section 3(j)(1) (location of gaming facilities on Indian 
lands), Section 17(c) (Amendments) and Section 25 (entire agreement of 
the parties) in all of the Tribal-State Compacts in Arizona, which were 
duly negotiated by the State and the Tribal Nations.
    In the compacts, the parties themselves eliminated reliance on any 
statements or promises made during negotiations, unless they were 
included within the four corners of the compact. Section 25 of the 
compacts provides that this is ``the entire agreement of the parties 
with respect to the matters covered by this compact and no other 
statement, or promise made by any party, officer, or agent of any party 
shall be valid or binding.'' In other words, the promise to which the 
title of S. 2670 refers seems to be illusory.
    We are further concerned that the provisions of S. 2670 may result 
in competitive restrictions favoring one tribe over another. This is a 
longstanding concern in the area of Indian gaming. In our April 25, 
2003, letters to Governor Doyle of Wisconsin and Chairman Frank of the 
Forest County Potawatomi Community, we refused to affirmatively approve 
a proposed Class III gaming compact because we found a provision 
excluding other Indian gaming ``anathema to basic notions of fairness 
in competition and inconsistent with the goals of IGRA.'' Letter from 
Acting Assistant Secretary--Indian Affairs, Aurene Martin to Chairman, 
Forest County Potawatomi Community, Harold ``Gus'' Frank (Apr. 25, 
2003). This legislation would negate and/or amend Section 3(j)(1) of 
the Nation's Tribal-State compact, without the Tribe or the State 
participating in the amendment and without regard to the agreement 
reached between two sovereigns.
Historical Context with the Gila Bend Act and Indian Gaming
    It is important to understand the historical context of gaming at 
the time of passage of the Gila Bend Act. When Congress enacted the 
Gila Bend Act in 1986, it was well aware of the Indian gaming industry. 
By that time, Indian gaming was already quite controversial. Indian 
gaming legislation was introduced in Congress as early as 1984 and 
1985. A good deal of litigation over Indian gaming had occurred in the 
late 1970s and early 1980s. Indeed, cases had been fully litigated 
through federal appeals courts with reported decisions by 1981. Federal 
litigation was proceeding in California, Florida, Minnesota and 
Wisconsin in the early 1980s. In sum, gaming was spreading like 
wildfire across the country in the early and mid-1980s.
    Fostering Indian gaming was a public policy choice by the Reagan 
Administration. President Reagan's Department of the Interior strongly 
encouraged such development in hopes that gaming would help poor tribes 
become more self-sufficient.
    And though it was aware of gaming, Congress said nothing in the 
Gila Bend Act that would prohibit Tohono O'odham from gaming on lands 
acquired under the Act. Covered acquisitions, which were mandatory 
under that Act, included lands in Maricopa County.
    After enacting the Gila Bend Act, Congress held hearings that 
ultimately led to enactment of IGRA in 1988. In IGRA, Congress 
generally prohibited gaming on lands acquired after its enactment. But 
Congress specifically included an exception for lands taken in trust as 
part of a land settlement like those to be acquired under the Gila Bend 
Act.
    Given this course of action by Congress, the Nation would have had 
reason to believe that the United States had promised it land on which 
it could engage in gaming in compensation for the lands flooded by the 
Corps in the San Lucy District. And given that the Gila Bend Act and 
IGRA are laws enacted through a very public process in Congress, none 
of these expectations developed in secret.
    In the Gila Bend Act, Congress mandated the taking of land into 
trust for the Nation to make a mandatory acquisition of land in 
Maricopa, Pima or Pinal County, as long as the land was not ``within 
the corporate limits of any city or town.'' It is the Department's view 
that, the promise made in the Gila Bend Act would be broken by S. 
2670.''
    For these reasons, the Department opposes S. 2670. This concludes 
my prepared statement. I am happy to answer any questions the Committee 
may have.

    The Chairman. Thank you, Assistant Secretary Washburn. I 
know that Senator McCain has a conflict with his Foreign 
Affairs, I believe, so I will let him go ahead of me.
    Senator McCain. Well, Mr. Washburn, you talk about 
impoverished tribes. Does that Tohono O'odham fit into that 
category, since they already have three casinos?
    Mr. Washburn. Yes, Senator, despite all that----
    Senator McCain. In other words, you just falsely gave the 
Committee the impression as if the Tohono O'odham was an 
impoverished tribe without Indian gaming. They have three 
casinos, right? Isn't that true?
    Mr. Washburn. I didn't mean to give the impression that 
they are not a gaming tribe, they indeed already are. But I 
will tell you that their gaming is in Tucson and Phoenix is a 
much larger market than Tucson.
    Senator McCain. Well, they are certainly not impoverished, 
Mr. Washburn.
    Mr. Washburn, you said that that was the intent that Indian 
gaming not be located in incorporated areas, right?
    Mr. Washburn. Yes.
    Senator McCain. Isn't that kind of technical, because it is 
in the middle of the city of Glendale? Isn't it sort of a 
technical--everything around it is incorporated. It is not out 
in the desert.
    Mr. Washburn. Senator, it was your bill. You wrote the 
language. We are just applying it.
    Senator McCain. You know something, Mr. Washburn, that is a 
pretty smart ass answer. And the fact is, I am telling you what 
the intent was, okay? Now, we wrote the bill, and we wrote it 
so that there would not be exactly what has happened now. And 
if you want to interpret that way, fine. You can interpret how 
you want to. I interpret it as not ever intending to have a 
gaming operation in the middle of an incorporated area without 
the permission of the people, not only in Glendale, because as 
you said, this is a large metropolitan area, but the people of 
the metropolitan area. They should have a say in this.
    You are not giving them a say in this. The city of Glendale 
has been split on this in various ways.
    So you are saying that one, that it is for impoverished 
tribes. Clearly, by any measurement, this tribe is not 
impoverished. Second of all, you say it was not the intent of 
the Act to be in incorporated areas. It is surrounded by 
incorporated areas, Mr. Washburn. And I can tell you what the 
intent is, and I believe that also it is your interpretation of 
the law versus my interpretation of the law.
    And I really appreciate your concern for impoverished 
tribes. I have that same concern. The Tohono O'odham tribe 
isn't one of those. It isn't one of those. They are doing very 
well with the three casinos that they have already. And there 
are established casinos within the Phoenix metropolitan area 
that this is going to impact. That is why the other tribes are 
against such a move, which would then impact their gaming 
operations and revenue. Has that been taken into consideration 
in your decision, the impact on other Native American tribal 
gaming?
    Mr. Washburn. As I said, Senator, this is a rapidly-growing 
market. It continues to be one of the fastest-growing cities in 
the Country. We certainly have a trust responsibility to all 
the tribes.
    Senator McCain. So it is up to you to decide whether an 
area is fast-growing or not, as to whether, what guides your 
decision? Mr. Washburn, that has nothing to do with the law.
    Mr. Washburn. It is my responsibility to follow the law and 
follow what Congress said. And what you said was, outside of 
any municipality, incorporated municipality, anywhere in 
Maricopa County. And that is what we read. And that is 
relatively clear. That is what we determined and that is what 
the courts have upheld. We believe that they are a tribe that 
has significant burdens. They are one of the largest tribes in 
the Country, they have roughly 40,000 members and they have a 
lot of land to try to take care of with a modest revenue 
source.
    Senator McCain. Three casinos is a modest revenue source.
    Mr. Washburn. Given their burdens, yes, Senator. This is 
not a tribe with 30 people or 300 people, this is a very, very 
large tribe with a lot of responsibilities. I can assure you, 
they can use more revenues.
    Senator McCain. I am sure every tribe in America can use 
more revenue.
    So you are basing your decision as to what, are you saying 
they are impoverished? Are you saying they are impoverished? 
Because you said, you are referring to impoverished tribes. Are 
you saying that this tribe is impoverished?
    Mr. Washburn. I want gaming to benefit all tribes. But yes, 
I am willing to live with the fact that Tohono O'odham is an 
impoverished tribe. It has a large number of members and many 
of them are living in very terrible conditions.
    Senator McCain. And are you aware of the gaming revenues 
from the three casinos?
    Mr. Washburn. I have heard there are gaming revenues from 
three casinos. I don't have them in front of me as I sit here.
    Senator McCain. Do you know what they are, roughly?
    Mr. Washburn. No.
    Senator McCain. So it doesn't matter to you what, obviously 
since you don't know, it doesn't matter to you what it is. So 
you are making a judgment as to the economic condition of the 
tribe without knowing what their revenues are. That is really, 
really good, Mr. Washburn. I don't have any more questions for 
this witness.
    The Chairman. Assistant Secretary Washburn, the Department 
approves Class III tribal-State gaming compacts. I believe that 
the Department has approved the latest compacts between the 
State of Arizona and the Arizona tribes. Do you know if the 
compacts currently in effect have any type of limitation of 
facilities in the Phoenix area?
    Mr. Washburn. They do not have any limitations as to the 
number of facilities in the Phoenix area.
    The Chairman. You mention in your testimony the Department 
does not support the bill, as it would undermine promises made 
by the United States to the Tohono O'odham Nation and the Gila 
Band Indian Reservation Land Replacement Act. I want you to 
describe, if this bill were enacted, could you describe the 
policy implications that it might have on future negotiations 
and settlements between tribes in the United States?
    Mr. Washburn. Well, the potential is that we will have 
tribes feeling this is the same stuff, a different day, that we 
are just continuing in the mode of breaking treaties and 
breaking promises to tribes. That is a tough situation to be 
in, because I had hoped we were past all that and that we were 
working to live up to our promises to Indian tribes going 
forward. So this would significantly undermine the promise that 
we made to Tohono O'odham in the Gila Bend Act and I think that 
would cause tribes to have great pause in settling with the 
United States Government if it doesn't live up to its promises.
    The Chairman. So you believe that the Gila Bend Act gave 
the Tohono O'odham the authority?
    Mr. Washburn. I believe it gave them the opportunity to 
take land into trust anywhere in Pima, Pinal and Maricopa 
Counties and with some caveats, one of the caveats being it 
couldn't be already incorporated land. So they went out and 
bought land that was not incorporated, but was in Maricopa 
County. And if we add requirements to that, we have changed the 
promise, we have changed the deal that we struck with Tohono 
O'odham.
    Senator McCain. Did that act refer, anywhere in it, any 
reference to gaming?
    Mr. Washburn. It had no prohibition on gaming whatsoever.
    Senator McCain. Did it have any reference to gaming?
    Mr. Washburn. It said that lands could be used for all 
purposes.
    Senator McCain. So it made no reference to gaming itself.
    Mr. Washburn. All purposes encompass gaming.
    Senator McCain. I see.
    The Chairman. Assistant Secretary Washburn, some of the 
witnesses' testimony that we are going to hear today talks 
about possible violations in the Arizona tribal compacts, 
whether by the Tohono O'odham project itself or by possible 
repercussions if the Tohono O'odham project is allowed to 
proceed. What role does the Department play in instances where 
the tribe or a State violates provisions of the compact?
    Mr. Washburn. Well, first of all, we approve those 
compacts. So we stamped approval on those compacts. And those 
compacts would, the provisions would be violated by this 
statute and would change, again, the terms of those compacts. 
So there are potential provisions for violations of gaming 
compacts. I am not sure what the steps would be for the United 
States to take for those violations.
    One of the compact's terms was that this compact, the final 
agreement for the parties on these issues, and introducing new 
terms after everybody agreed that they have agreed on all the 
terms, is definitely a change in the promise.
    The Chairman. Okay. Do you have any more questions, Senator 
McCain?
    Senator McCain. No, thank you, Mr. Chairman.
    The Chairman. Thanks, Secretary Washburn. We appreciate 
your taking time out of your schedule to be here today.
    We will give the staff a moment to reset the witness table. 
The witnesses can come up at this time.
    I want to welcome our second panel up to the witness table. 
We will first hear from Governor Gregory Mendoza, the Gila 
River Pima Maricopa Community. Then we will turn it over to 
Mayor Jerry Weiers, City of Glendale. Welcome back, Mayor.
    We will then hear from Gary Sherwood, Glendale city 
councilman. And finally, we are going to hear from Chairman Ned 
Norris of the Tohono O'odham Nation, and we welcome you back as 
well, Mr. Chairman.
    Thank you all for being here today. Governor Mendoza, we 
shall start with you. Go ahead.

STATEMENT OF HON. GREGORY MENDOZA, GOVERNOR, GILA RIVER INDIAN 
COMMUNITY; ACCOMPANIED BY ALLISON C. BINNEY, PARTNER, AKIN GUMP 
                    STRAUSS HAUER & FELD LLP

    Mr. Mendoza. Good afternoon, Chairman Tester, members of 
the Committee. Thank you for holding this hearing and inviting 
me to speak in support of the Keep the Promise Act.
    I want to start by saying that it pains me to advocate 
against a sister tribe. But this is not a dispute with the 
O'odham people, only with the leadership of the Tohono O'odham 
Nation, whose actions jeopardize every tribe in Arizona. 
Contrary to what Tohono O'odham claims, this is not a fight 
about market share. It is about preventing fraud upon tribes, 
local governments and voters.
    Tohono O'odham likes to talk about the promises made 
between their tribe and the Federal Government in 1986. But 
this bill is about protecting the promise made to my community 
and to other tribal governments. Our tribes relied upon the 
actions of the Tohono O'odham when we gave up our rights in 
2002. While we agree that Tohono O'odham should get replacement 
lands under the 1986 law, we also strongly believe that Tohono 
O'odham must abide by the promise and commitments they made to 
us.
    In 2002, Arizona tribes had to get approval of our compact 
from the voters. In order to get this approval we promised the 
voters that the number of casinos in the Phoenix metro area 
would not increase until 2027. At the same time that Tohono 
O'odham helped us win voter approval, they also were secretly 
plotting to build a casino in Phoenix. That casino would be 
located right across the street from a high school, and it is 
near homes and churches. This is exactly what we promised the 
voters would not happen. Tribes like mine gave up rights to 
build additional casinos. We also agreed to limits on the 
number of gaming machines allocated to us.
    We did this in order to get voter approval and to preserve 
the tribal monopoly on gaming in Arizona. And we ensured that 
rural tribes benefit from gaming.
    Tohono O'odham doesn't deny making promises, nor do they 
deny knowing that their sister tribes gave up rights in order 
to limit the number of casinos in Phoenix. They don't deny that 
the compact negotiations would have been vastly different if 
everyone knew of their plans. Instead, they say they are 
winning in the courts. There remains a dispute because they 
refuse to waive their sovereign immunity for claims of fraud.
    We do not want to attack another tribe's immunity. That is 
why the bill merely provides for a temporary restriction on 
additional casinos in the Phoenix area until the end of the 
existing compacts. At that point, all parties can come together 
at the table and bargain in good faith. Hopefully my community 
will be able to regain the rights we gave away.
    The Gila River Indian Community will weather this storm. 
But most tribes in Arizona are not as fortunate. Rural tribes 
will suffer the most from Tohono O'odham's fraud. There are six 
rural tribes that utilize gaming compacts to lease gaming 
machines to urban tribes. Leasing these machines allows them to 
benefit from gaming, even though their markets can't support a 
casino.
    Each year, these tribes receive more than $30 million to 
provide basic services to their members. And the structure of 
the gaming compacts create markets for a few rural tribes to 
operate small casinos. If gaming happens at Glendale, the State 
legislature will likely eliminate that tribal monopoly. If this 
happens, urban tribes will have no reason to lease gaming 
machines from rural tribes. Patrons will stop traveling to 
reservations for gaming and instead visit non-tribal casinos 
located in cities.
    We have come to Congress because you are the only entity 
that can provide swift action to preserve the promises made in 
2002. Interior indicates it cannot resolve this matter because 
Congress, through the 1986 law, mandates them to take the land 
into trust for Tohono O'odham. This bill does not set that 
precedent. It is common for Congress to pass bills that limit 
tribal gaming. In this Congress alone, two bills have been 
enacted placing land into trust for a tribe, but prohibiting 
gaming on those lands. The bill merely restricts gaming on the 
lands until 2027, but does not eliminate the uses of the land. 
There are a number of non-gaming activities that Tohono O'odham 
could conduct.
    For all of these reasons, I ask that you pass this bill. 
Thank you.
    [The prepared statement of Mr. Mendoza follows:]

Prepared Statement of Hon. Gregory Mendoza, Governor, Gila River Indian 
                               Community
    Chairman Tester, Vice Chairman Barrasso and members of the 
Committee, I want to thank you for inviting me to testify on behalf of 
the Gila River Indian Community (Community) regarding S. 2670, the Keep 
the Promise Act of 2014. Swift enactment of this overwhelmingly 
bipartisan legislation is critical to protecting the existing system of 
tribal gaming in Arizona. That system is now under threat because the 
Tohono O'odham Nation (Tohono O'odham or Tribe) has broken ground on a 
casino project in the Phoenix metropolitan area that would unilaterally 
destroy the commitment made byArizona tribes that there would be no 
additional casinos in that area until 2027.
    In July, the Committee heard extensive testimony about why the Keep 
the Promise Act is necessary to protect the future of Indian gaming in 
Arizona. There was testimony about how Tohono O'odham used negotiations 
for the current tribal-state compact in Arizona to advance a secret 
plot to open a casino in Phoenix while telling the State officials and 
Arizona voters that there would be no more casinos in that very area. 
The Committee also heard how Arizona's desire to limit gaming in urban 
areas was exploited by Tohono O'odham, which recognized that tribes 
like the Community agreed not to open new casinos in Phoenix. Now, we 
also know that Tohono O'odham kept their plans secret for almost a 
decade while the State, local cities, and Arizona tribes relied and 
invested millions of dollars based upon the commitment of no additional 
casinos in the Phoenix metropolitan area.
    By prohibiting gaming on tribal lands acquired in trust status 
after April 9, 2013 within the Phoenix metropolitan area until January 
1, 2027, this bill maintains the commitments and promises that were 
relied upon during negotiations of the current gaming compacts for the 
duration of those compacts, which begin to expire in late 2026. It must 
be clearly understood that the bill does not prohibit Indian gaming on 
the lands beyond the sunset date of January 1, 2027 and does not 
prevent lands from being taken into trust status for Indian tribes. At 
its core, S. 2670 is a bill that would protect the agreed upon system 
of Indian gaming in Arizona and would prevent fraud from being 
committed upon tribes, local governments, and voters. Tohono O'odham 
has been trying to open a casino far outside its aboriginal territory 
and within the Phoenix metropolitan area since 2002 when it promised 
the State, voters, and Arizona tribes that there would be no additional 
casinos in this area. The promise is important because the voters of 
Arizona authorized a system of gaming in 2002 when the tribes 
essentially obtained a legal monopoly on gaming in the State, a 
monopoly that has benefited all Indian tribes in the State, gaming and 
non-gaming. But in return, the voters wanted to set a hard cap of seven 
casinos that would be in the Phoenix metropolitan and no more. 
Additionally, the voters wanted certainty about the potential 
proliferation of gaming, and thought that they had achieved that 
certainty by limiting gaming to Indian tribes on Indian reservations as 
they existed at the time of their vote in 2002.
    To be clear, no one is trying to prevent Tohono O'odham from 
acquiring replacement lands pursuant to the 1986 Gila Bend Indian 
Reservation Lands Replacement Act (``Gila Bend Act''), Pub. L. 99-503. 
But, we do believe that such replacement lands should be within the 
aboriginal territory of Tohono O'odham and that the Tribe should not be 
able to utilize the 1986 law to violate the commitments and promises 
relied upon during the negotiations of the existing gaming compacts in 
Arizona.
    Contrary to the testimony of Tohono O'odham, S. 2670 would not 
create liability for the United States or constitute an unlawful taking 
that would trigger constitutional protection because it is well within 
Congress' plenary power over Indian affairs to defend and protect the 
promises that tribes publicly make to obtain gaming. There is no Fifth 
Amendment right for tribes to violate their own promises on which other 
tribes and the State have relied. The Fifth Amendment does not curtail 
Congress's authority to protect the compacting process from broken 
promises and misrepresentations. To suggest otherwise is disingenuous. 
S. 2670 was narrowly crafted to preserve promises made during the 
negotiation of the existing tribal-state compact and to clarify them in 
a manner that is consistent with federal precedent related to the 
regulation of gaming on Indian lands.
    We have come to Congress because you are the only entity that can 
provide justice in this situation. Congress allowed tribes to be sued 
for violations of gaming compacts once they are signed. Unfortunately, 
Congress did not anticipate situations like this, where a tribe commits 
fraud during compact negotiations. Further, the Interior Department 
indicates that they cannot resolve this matter because Congress, 
through the 1986 law, mandates them to take the Phoenix area land into 
trust for Tohono O'odham.
    We wish we did not have to come to Congress to address this matter, 
but we are here because you are our only option.
The Keep The Promise Act Protects All Arizona Tribes
    The policy objective of the Keep the Promise Act is simple, to 
preserve the existing model tribal-state compact that all Arizona 
tribes agreed to abide by and game under. Arizona's model compact is 
unique because it struck a delicate balance between the competing 
interests of the Governor, who wanted to stop the spread of gaming in 
cities, and Tribes, who wanted tribal exclusivity for gaming. Under the 
model compact the Governor agreed to tribes' exclusive right to conduct 
casino gaming provided certain conditions were met. These conditions 
include: (1) overall limits on the number of gaming devices and 
casinos; (2) a maximum number of gaming devices per casino; (3) 
specific limits on the number of casinos located in or near Phoenix and 
Tucson; (4) revenue-sharing arrangements between rural tribes with no 
casinos and tribes with casinos in urban markets; and (5) revenue-
sharing arrangements between the State and Arizona tribes.
    Importantly, in return for rural tribes agreeing to limits on 
gaming in the Phoenix and Tucson metropolitan areas, and for giving up 
an opportunity to seek off-reservation gaming near these lucrative 
markets, they are able to share in gaming revenues generated in these 
markets through machine transfer agreements (i.e., lease their machine 
rights to urban tribes). As a result, the rural non-gaming tribes 
receive revenues from gaming tribes located in the metropolitan 
markets. There are six tribes in Arizona that currently benefit under 
machine transfer agreements: Havasupai, Hualapai, Kaibab-Paiute, 
Navajo, San Juan Southern Paiute, and Zuni. As tribes that struggle 
with severely limited economic opportunities, these funds are essential 
to many of the rural tribes. Each year, these tribes receive a combined 
amount that exceeds $30 million to provide basic services to their 
tribal members. These tribes rely on stable machine transfer revenue 
and stand to be hurt the most by Tohono O'odham's proposal.
    Although the impact of Tohono O'odham's proposed casino will 
reverberate throughout Arizona, it will be felt most severely by these 
rural tribes who depend on revenue from transfer agreements that are 
only possible because through the model compact. These rural tribes are 
concerned about the Tohono O'odham's casino because of another feature 
of the model compact that is commonly referred to as a ``poison pill.'' 
This provision essentially states that if the tribal gaming monopoly is 
disrupted in any way--i.e., if Arizona expands gaming to private non-
Indians interest--tribes may then operate casinos free of any 
conditions imposed upon them by the model compact. If non-tribal gaming 
is authorized, then the existing caps on facilities and machines will 
disappear and there will be no requirement or reason for urban tribes 
to lease machines from, and share revenue with, rural tribes.
    Rural tribes will not be the only tribes hurt if non-tribal gaming 
is authorized in Arizona. Small market gaming tribes will also suffer 
because gaming consumers would stop traveling to reservations for 
gaming, and would instead visit non-tribal casinos, which will likely 
be located in cities.
    Commercial gaming interests have been clamoring to expand into 
Arizona since the 1990's and have long targeted tribal exclusivity as 
an argument in favor of their efforts. As Glendale Mayor Jerry Weirs 
told this Committee in July, ``if gaming happens in Glendale, there 
will be a strong effort in the Arizona legislature to authorize non-
Indian gaming in the State.'' It isn't just a position held by Mayor 
Weiers. There have been numerous bills introduced in the Arizona 
legislature in recent years to authorize non-tribal gaming, as well as 
a steady stream of editorials and articles calling for an end to tribal 
gaming exclusivity. The bottom line is that tribes, Arizona citizens, 
and commercial gaming interests view Tohono O'odham's plan as breaking 
all Arizona tribes' solemn promise not to open new casinos in the 
Phoenix metropolitan area under the current model compact. The opening 
of the Glendale casino will destroy Arizona tribes' credibility among 
voters and lawmakers, and will be used to justify the end of tribal 
exclusivity.
    The Community will be negatively impacted if the Tohono O'odham 
opens up one or more casinos in the Phoenix-metro area. If the Tohono 
O'odham is successful we will have to make budget cuts that will impact 
our general welfare programs and employment opportunities for our 
members. These cuts will be especially severe if non-tribal gaming is 
also authorized. However, the Community will be able to weather the 
storm far more easily than rural non-gaming tribes who rely most on the 
current revenue sharing system.
    In contrast to all other Arizona tribes, Tohono O'odham has a 
strong incentive to end the conditions under the model compact. Tohono 
O'odham maintains that it can operate all of its casinos in Phoenix 
metropolitan area. If the Tribe successfully establishes one casino in 
the Phoenix area and subsequently moves the rest of its existing 
casinos to the area, it would not want market parity. Instead, it would 
want to create large mega-casinos to dominate the market. Tohono 
O'odham can accomplish market domination if the limitations in the 
model compact regarding the number of gaming machines in each casino go 
away.
    Given Tohono O'odham's established gaming presence and its ability 
to unilaterally cherry-pick strategic locations in the area, it would 
have an overwhelming head start in any race to establish new gaming 
facilities in the area should gaming expand to include non-Indian 
interests. Thus, it would be entirely in Tohono O'odham's interest to 
have the ``poison pill'' provision triggered and eliminate restrictions 
on tribal gaming altogether. Tohono O'odham would then be the only 
tribe in Arizona able to compete with non-Indian gaming interests on 
equal footing.
    Because Arizona law does not allow two-part determinations, \1\ all 
other tribes would have difficulty competing in this new market and 
would be forced to attempt to relocate to the urban markets under 
dubious legal theories or face massive losses in revenue. With Tohono 
O'odham dominating the Phoenix market, while at the same time facing 
competition from non-Indian gaming interests, all other Arizona tribes 
would either suffer drastic cuts to tribal member services, or could be 
forced to shutter their gaming facilities altogether. The latter is 
especially true for the outlying small market tribes. Gaming 
competition among tribes would not increase; rather, Tohono O'odham 
would become the sole winner among Arizona tribes.
---------------------------------------------------------------------------
    \1\T3ASee Ariz. Rev. Stat. Ann.  5-601(C) (prohibiting the 
Governor from concurring in any determination by the Secretary that 
gaming may be permitted on Indian lands within Arizona under 25 U.S.C. 
 2719(b)(1)(A)); see also 25 U.S.C.  2719(b)(1)(A) (permitting gaming 
on Indian lands acquired in trust after October 17, 1988 where the 
Secretary consents and the Governor of the state in which the Indian 
lands are located subsequently concurs that gaming may take places on 
the lands in question).
---------------------------------------------------------------------------
The Keep The Promise Act Would Not Create Negative Precedent
    The Keep the Promise Act does not jeopardize tribal sovereignty nor 
create negative precedent for Indian Country. Congress routinely 
creates laws that restrict the ability of tribes to conduct gaming 
through several types of legislation. The Department often supports 
these bills even though they include the explicit limitations on an 
affected tribe's right to game. Accordingly, any arguments that S. 2670 
constitutes dangerous precedent are inconsistent with common 
Congressional practice and are without merit.
    Congress has enacted these clarifications through statutes intended 
to shed light on earlier legislation and settlements, prohibitions 
included in land-into-trust transfers, and restrictions included in 
federal recognition and restoration legislation. In 2011, Congress 
enacted the Indian Pueblo Cultural Center Clarification Act, which 
amended Public Law 95-232. The clarification repealed language in an 
early statute and provided that lands acquired in trust for certain 
Indian Pueblos would be treated as Indian Country, except for the 
purpose of gaming under the Indian Gaming Regulatory Act (IGRA), 25 
U.S.C.  2701 et seq. Three years earlier, in 2008, Congress clarified 
the Mashantucket Pequot Settlement Act to provide for the extension of 
leases of the Tribe's land but provided that ``No entity may conduct 
any gaming activity (within the meaning of section 4 of the Indian 
Gaming Regulatory Act (25 U.S.C. 2703)) pursuant to a claim of inherent 
authority or any Federal law . . . . on any land that is leased with an 
option to renew the lease in accordance with this section.''). In 1978, 
Congress settled the Narragansett Tribe's land claims through the Rhode 
Island Indian Claims Settlement Act, which did not include a provision 
regarding gaming. 25 U.S.C.  1701 et seq. Congress subsequently 
amended the Rhode Island Claims Settlement Act in 1996 to unilaterally 
clarify that lands acquired by the Narragansett pursuant to the 
Settlement Act ``shall not be treated as Indian lands'' for the purpose 
of gaming under IGRA. 25 U.S.C.  1708(b). The practice of amending 
existing agreements has persisted until today.
    Congress has also passed numerous tribe-specific and area-specific 
laws to restrict gaming in recent years. In 2012, Congress enacted 
Public Law 112-97 to provide lands that would ensure flood and tsunami 
protection for the Quileute Indian Tribe. The law transferred lands to 
the tribe in trust but stipulated that the tribe may not use the land 
for any commercial purposes and may not build any commercial or 
permanent structures on the land. This prohibition has the effect of 
preventing the tribe from exercising its right to game on the land. Two 
years earlier, Congress passed the Hoh Indian Tribe Safe Homelands Act, 
Public Law 111-323, which transferred federal and non-federal land to 
the Hoh Indian Tribe. The legislation specifically provided that 
``[t]he Tribe may not conduct on any land taken into trust pursuant to 
this Act any gaming activities--(1) as a matter of claimed inherent 
authority; or (2) under any Federal law . . . . ''
    This continues to be a consistent practice of Congress and is one 
that the Department has vocally supported in the past. This Congress 
alone, there have been two laws enacted to place lands in trust on 
behalf of Tribes while simultaneously prohibiting the benefitting 
Tribes from using the lands for gaming. Public Law 113-127, which 
placed Federal land in trust for the benefit of the Shingle Springs 
Band of Miwok Indians stipulates that ``class II and class III gaming 
under the Indian Gaming Regulatory Act (25 U.S.C.  2701 et seq.) shall 
not be permitted at any time on the land taken into trust.'' The 
Department testified in support of the bill despite its prohibition on 
gaming. Separately, Public Law 113-134, the Pascua Yaqui Tribe Trust 
Land Transfer Act, placed Federal land into trust for the benefit of 
the Pascua Yaqui Tribe while stipulating that ``The Tribe may not 
conduct gaming activities on the lands held in trust under this Act, as 
a matter of claimed inherent authority, or under the authority of any 
federal law . . . . ''
    These examples demonstrate that it is appropriate and routine for 
Congress to enact legislation to clarify earlier statutes and limit 
gaming pursuant to IGRA in appropriate circumstances. Given the near 
universal opposition to the proposed Glendale casino, the Keep the 
Promise Act will not create harmful precedent and is in line with 
Congress's role in legislating in Indian Country to accurately reflect 
congressional intent. Rather, bad precedent would be created by 
allowing Tohono O'odham to operate a casino that puts all other Arizona 
tribes at risk.
The Keep the Promise Act Does Not Create Liability for the United 
        States
    Tohono O'odham contends that S. 2670 would subject the United 
States to a Fifth Amendment Takings Claim. This objection is premised 
on notion that when Arizona tribes obtained IGRA compacts by promising 
not to attempt to use those compacts to locate any additional casinos 
in the Phoenix area, the Fifth Amendment somehow protects their right 
to violate that very promise. This could not be further from the truth. 
It should go without saying that Congress does not abrogate gaming 
compacts or affect a Fifth Amendment taking when it defends and 
protects the promises tribes made publicly to obtain the compacts. 
Neither gaming compacts nor the Gila Bend Act include an inherent right 
to profit from States' and tribes' detrimental reliance on a tribe's 
promises during the compacting process. Simply put, there is no Fifth 
Amendment right for tribes to commit fraud while violating their own 
promises. The Fifth Amendment does not limit Congress' authority to 
preserve the integrity of IGRA's compact process from illegality.
    Nonetheless, Tohono O'odham argues that S. 2670 will give rise to a 
successful takings claim against the United States, a claim that the 
Assistant Secretary was not willing to embrace during his response to 
the Committee's questions during the July 2014 hearing. Such a claim 
would argue that S. 2670 constituted ``regulatory taking'' by depriving 
TON of an economic use of its land and interfering with an investment-
backed expectation. As a threshold matter, the Fifth Amendment's Taking 
Clause generally applies to federal actions that affect Indian property 
rights formally recognized by Congress. See generally 1-5 Cohen's 
Handbook of Federal Indian Law  5.04[2][c]. However, the Supreme 
Court's opinion in Penn Central Transportation Co. v. City of New York, 
438 U.S. 104 (1978), established a multifactor analysis for courts to 
consider when weighing a regulatory taking claim. The Penn Central test 
has spawned different categories of regulatory takings but it is highly 
unlikely that TON could successfully argue that S. 2670 fits into any 
one of these.
    Penn Central requires an ad hoc factual inquiry based on three 
factors: (1) ```the character of the governmental action'''; (2) 
``[t]he economic impact of the regulation on the claimant''; and (3) 
``the extent to which the regulation has interfered with distinct 
investment-backed expectations.'' Lingle v. Chevron U.S.A. Inc., 544 
U.S. 538-539 (alteration in original (quoting Penn Central, 438 U.S. at 
124). Mindful of Justice Holmes's oft-cited admonition that 
``[g]overnment hardly could go on if to some extent values incident to 
property could not be diminished without paying for every such change 
in the general law[,]'' Mahon, 260 U.S. at 413, courts historically 
have applied Penn Central's inquiry stringently.
    First, the character of the governmental action that would give 
rise to TON's taking claim would likely weigh against an 
unconstitutional taking. S. 2670 was narrowly crafted so TON may still 
use the Glendale Parcel for commercial gain or otherwise, even if it 
cannot operate Class II or III gaming activities on the property. The 
proximity of the Glendale Parcel to the Arizona Cardinals stadium will 
allow Tohono O'odham to pursue a wide variety of lucrative economic 
development activities that will bring significant revenue. Viewed from 
that perspective, the legislation is more akin to a zoning regulation 
restricting a particular land use, which tends to withstand a Takings 
Clause challenge. See generally Village of Euclid v. Ambler Realty Co., 
272 U.S. 365 (1926).
    Moreover, here Congress is effectively regulating gambling in the 
public interest. The Supreme Court has long recognized the regulation 
of gambling to be a traditional exercise of police power. See Lawton v. 
Steele, 152 U.S. 133, 136 (1894). And under a much older Takings Clause 
regime, it has held that ```acts done in the proper exercise of 
governmental powers, and not directly encroaching upon private 
property, though these consequences may impair its use,' do not 
constitute a taking within the meaning of the constitutional provision, 
or entitle the owner of such property to compensation from the state or 
its agents, or give him any right of action.'' Mugler v. Kansas, 123 
U.S. 623 (1887) (discussing prohibition of alcohol). It is of great 
consequence for purposes of this analysis that Congress has already 
placed substantial limits on Indian gaming unless done in accordance 
with the IGRA. If allowing gaming pursuant only to IGRA's strictures is 
Congress's baseline approach, then S. 2670 is consistent with that 
public policy insofar as it closes a loophole in IGRA that is only 
available to TON through its bad faith negotiations with other parties.
    Second, the economic impact of the regulation would clearly be 
significant but Supreme Court decisions have ``long established that 
mere diminution in the value of property, however serious, is 
insufficient to demonstrate a taking.'' Concrete Pipe & Products of 
Cal., Inc. v. Construction Laborers Pension Trust for S. Cal., 508 U.S. 
602, 645 (1993). Indeed, the Supreme Court has noted that a diminution 
in property value as high as 75 percent or even 92.5 percent may not be 
a sufficiently serious impact. Id. at 645. Because the Glendale Parcel 
can be put to a range of other profitable uses, a court may well give 
less weight to the impact of precluding Class II and III gaming 
activities. It is also relevant to this analysis that S. 2670 is 
temporally limited so any economic impact on Tohono O'odham's ability 
to use the Glendale Parcel for gaming would terminate on January 1, 
2027 when all Arizona tribal-state compacts will need to be re-
negotiated. Further, S. 2670 would not prevent Tohono O'odham from 
developing a fourth casino anywhere outside of the Phoenix metropolitan 
area. These points illustrate how the Keep the Promise Act was drafted 
to avoid a permanent impairment of any economic development 
opportunities, including gaming, so any action challenging the Keep the 
Promises Act would likely fail to demonstrate a credible Takings Claim.
    Third, it is unlikely that TON will be able to establish that its 
investment-backed expectations rise above a ``unilateral expectation or 
an abstract need,'' which would be critical to establishing a Takings 
Claim. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 (1984) (citation 
and quotation marks omitted). Several courts have recognized that 
gambling is a highly regulated industry and that it is difficult to 
hold reasonable investment-backed expectations in light of that 
regulation. See, e.g., Holliday Amusement Co. of Charleston, Inc. v. 
South Carolina, 493 F.3d 404, 411 (4th Cir. 2007) (holding no taking of 
slot machine property where South Carolina banned video poker after 25 
years of allowing it because ``Plaintiff's participation in a 
traditionally regulated industry greatly diminishes the weight of his 
alleged investment-backed expectations''); Hawkeye Commodity 
Promotions, Inc. v. Vilsack, 486 F.3d 430, 442 (8th Cir. 2007) (holding 
multi-million ``devastating economic impact'' of ban on TouchPlay 
machines to be ``discounted'' by ``heavily regulated nature of gambling 
in Iowa). Tohono O'odham was well aware of the inherent riskiness of 
gaming ventures when they purchased the Glendale Parcel. This is likely 
why the parcel was purchased and kept secret until a more favorable 
political environment improved the likelihood of success for their 
scheme. The attenuated timeline of this project epitomizes the highly 
speculative nature of gaming projects.
    Again, it would be difficult for TON to argue that IGRA and the 
2002 Compact guarantee a right to game on the Glendale Parcel. The Gila 
Bend Act and its corresponding settlement agreement did not give Tohono 
O'odham a right to violate its own subsequent promises in the 
compacting process. The Gila Bend Act is silent with respect to gaming 
and it was also enacted two years before IGRA. Further, no one can make 
the credible argument that by regulating Las Vegas style gaming and 
making it subject to the Tribal-State compacting process, that IGRA 
constituted a breach of contract or a taking of federally recognized 
tribes' inherent right to game on tribal lands. Congress could preclude 
Indian gaming altogether and has already enacted IGRA to establish that 
tribal gaming is permissible only ``if the gaming activity is not 
specifically prohibited by Federal law,'' 25 U.S.C.  2701(5), and it 
contains several restrictions as to the location of gaming facilitates. 
All of that at least arguably puts tribes on notice that Congress may 
at any time enact additional restrictions on tribal gaming. Moreover, 
the 2002 Compact--which was negotiated between the Tribes and the State 
of Arizona--could not estop Congress from altering IGRA. Cf. Sioux 
Nation, 448 U.S. at 410-411 (affirming Congress's power to abrogate 
treaties with tribes). Simply put, ``[t]he pendulum of politics swings 
periodically between restriction and permission in such matters [as 
gambling], and prudent investors understand the risk.'' Holliday 
Amusement, 493 F.3d at 411. Nothing in the Gila Bend Act bestowed any 
absolute right to locate a casino on Indian lands in Phoenix--much less 
did it enshrine a right to violate promises Tohono O'odham and other 
tribes later made in pursuit of IGRA compacts with Arizona in 1993 and 
2002. IGRA, not the Gila Bend Act, defines the boundaries of Indian 
gaming authority, and just as Congress enacted limitations on such 
gaming in IGRA, it can legislatively protect the IGRA compacting 
process from the corrosive and profoundly destabilizing effect of 
unkept promises made to obtain a compact.
    In sum, there are considerable arguments against the viability of a 
Takings Clause challenge to S. 2670 that stem from the narrow scope of 
the legislation, arguments that the Assistant Secretary seemed to 
tacitly acknowledge when he responded to the Committee's inquiries on 
the issue. The limited nature of the government's restriction, the 
continued economic viability of the Glendale Parcel, and the highly 
regulated nature of gaming present significant barriers to a regulatory 
taking claim.
S. 2670 Would Not Impact Pending Litigation
    Tohono O'odham likes to tell Members of Congress to let the ongoing 
litigation run its course before taking any action on this matter. 
However, the Tribe fails to tell those very same Members that the 
courts are unable to adjudicate the essential claims in this matter 
because Tohono O'odham refuses to waive its sovereign immunity. Thus, 
S. 2670 would not interfere with ongoing litigation and Congress is the 
only entity that can resolve this issue.
    Two lawsuits were brought after Tohono O'odham announced its 
intention to acquire lands into trust for an off-reservation casino in 
2009. One lawsuit challenges the Tribe's ability to have the lands 
taken into trust status as an Indian reservation, and that lawsuit is 
near completion. The other lawsuit alleges that Tohono O'odham 
wrongfully induced the relevant parties to enter into the compact and 
is violating the compact. While the courts have been able to review 
certain claims with respect to the express terms contained within the 
gaming compact, the courts have been thwarted by Tohono O'odham from 
addressing the claims of fraud, misrepresentation, or promissory 
estoppel because the Tribe asserted tribal sovereign immunity with 
respect to those claims. Tribal sovereign immunity is a legal doctrine 
providing that Indian tribes are immune from judicial proceedings 
without their consent or Congressional waiver. Congress waived tribes' 
sovereign immunity in IGRA with respect to claims for violations of a 
compact once the compact is signed, but IGRA does not waive a tribe's 
sovereign immunity for actions that occurred prior to the signing of 
the compact. Since Tohono O'odham refused to waive its sovereign 
immunity with respect to the claims of fraud, misrepresentation and 
promissory estoppel, which occurred prior to the signing of the 
compact, the court was unable to consider those claims. It would be odd 
for a gaming compact to waive tribal sovereign immunity in anticipation 
of acts of fraud and misrepresentation, or wrongful inducement. Sadly, 
the 2027 Arizona compacts may require that very thing solely as a 
result of the actions of Tohono O'odham here.
    It is these court dismissed claims that S. 2670 seeks to remedy. 
And, in its May 7, 2013 order the Federal District Court for the 
District of Arizona found that although evidence appears to support the 
promissory estoppel claim against Tohono O'odham, the court had to 
dismiss the claim also because of the Tribe's sovereign immunity. \2\ 
Promissory estoppel is where one party makes a promise and a second 
party acts in reasonable and detrimental reliance on that promise. In 
that instance, a court would normally be able to enforce the promise 
that was relied on regardless of whether it was expressly stated in a 
contract. That's exactly what happened in this matter. Tohono O'odham 
made representations that there would be no additional casinos in the 
Phoenix area and the State and other tribes and voters relied on the 
Tribe's representations in deciding to give up rights to additional 
casinos and gaming machines, approve Proposition 202, and sign the 
compacts approved by the voters. And, because Tohono O'odham's false 
promises preceded execution of its compact with the State of Arizona, 
the conduct fell outside of IGRA's waiver of sovereign immunity. 
Neither IGRA nor any other law concerning governmental conduct would 
necessarily anticipate fraudulent conduct by responsibly governments, 
tribal or otherwise. Tohono O'odham has exploited that fundamental 
assumption and shielded itself from judicial review of its conduct by 
refusing to waive sovereign immunity.
---------------------------------------------------------------------------
    \2\ State of Ariz. v. Tohono O'odham Nation,, slip op. at 26-27 (D. 
Ariz. May 7, 2013).
---------------------------------------------------------------------------
    Tohono O'odham argues that it is unreasonable to expect it to waive 
its sovereign immunity for what its Chairman referred to as frivolous 
claims. The court only found that it could not reach the claims because 
of sovereign immunity, not that they were without merit. Indeed, the 
court suggested otherwise when it stated that evidence appeared to 
support the claims against Tohono O'odham, notwithstanding its immunity 
from unconsented suit. To the contrary, it is precisely because those 
claims would expose the wrongful conduct that Tohono O'odham must use 
sovereign immunity as a shield. And, while it is common for tribes to 
grant limited waivers of sovereign immunity, particularly for 
commercial reasons such as casinos, it is hard to imagine waivers that 
would have expressly envisioned duplicitous conduct grounded in fraud 
as part of a gaming compact; perhaps the State will require such 
waivers of all Arizona Indian Tribes in the 2027 compacts in order to 
safeguard against future conduct of this sort by Tohono O'odham. In the 
end, waiving sovereign immunity is a political decision, and one that 
we respect. However, it is disingenuous for Tohono O'odham to refuse to 
waive its sovereign immunity in court in order to prevent resolution of 
certain claims and then argue that Congress should not resolve these 
same claims because they are being addressed in litigation.
    S. 2670 comes at a critical time for tribal sovereignty and Indian 
gaming. In May, the Supreme Court issued its opinion in Michigan v. Bay 
Mills, 134 S.Ct. 2024 (2014). The Court, in a 5 to 4 decision, ruled 
that the Bay Mills Tribe could assert tribal sovereign immunity and 
avoid claims filed by the State of Michigan that sought to close what 
it claimed was an illegal off-reservation in Vanderbilt, Michigan. The 
Court stated at five different points in its opinion that Congress and 
not courts are the proper venue to resolve issues where sovereign 
immunity has frustrated efforts to bring justice to parties that cannot 
maintain suit against tribes. Perhaps most disturbingly, Justice 
Scalia, who voted in favor of several Supreme Court decisions which 
cemented the doctrine of tribal sovereign immunity, explicitly stated 
in his dissenting opinion in Bay Mills that those votes in support of 
sovereign immunity were wrong and that he ``would overrule'' tribal 
sovereign immunity. Although Bay Mills was certainly a limited victory 
for Indian Country, it also put a spotlight on the fragile state of 
tribal sovereign immunity and the fact that the Supreme Court is one 
vote from limiting its application or eliminating it altogether. Bay 
Mills illustrates that off-reservation projects such as those proposed 
by the Bay Mills Indian Community and Tohono O'odham manipulated the 
process for obtaining federal approval of tribal gaming projects and 
have used sovereign immunity as a shield to protect fraudulent 
activity. From this perspective, S. 2670 is good policy for Indian 
Country because it will address a narrow set of facts that exploit 
sovereign immunity and will establish that conniving plots such as that 
pursued by Tohono O'odham will not be sanctioned.
    There remain certain issues that are pending in litigation, but 
those issues are not related to the claims of fraud, misrepresentation 
and promissory estoppel. S. 2670 is intended to not impact any pending 
court case, but rather to address the issues that the court has 
determined that it is unable to resolve. More, the Department has also 
indicated that it cannot resolve the claims of fraud, misrepresentation 
and promissory estoppel, and that it cannot resolve this matter because 
Congress, through the 1986 law, mandates them to take the Phoenix area 
land into trust for Tohono O'odham. Thus, Congress is the only entity 
capable of resolving this issue and addresses issues that courts are 
unable to review.
    For all these reasons, I respectfully ask that you pass this bill.

                         Supplemental Testimony
                         
                         
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    The Chairman. Thank you, Governor.
    Mayor Weiers? And I would ask, try to keep it to give 
minutes, because Senator McCain has another meeting to get to, 
and I want to get to him for questions.

   STATEMENT OF HON. JERRY WEIERS, MAYOR, CITY OF GLENDALE, 
                            ARIZONA

    Mr. Weiers. I will do the best I can, sir, thank you very 
much.
    Good afternoon, Chairman Tester, Vice Chairman Barrasso and 
members of the Committee. My name is Jerry Weiers, and I am the 
mayor of Glendale, a city of 232,000, and the 72nd largest city 
in the Country. Before becoming mayor, I served eight years in 
the Arizona legislature.
    I am here today to discuss my personal views on a casino 
proposed to be built in my city. I am required to state that my 
views today do not represent the majority of the body of the 
council. My views are not the official position of the council.
    Like Senator McCain, I supported Arizona Proposition 202, 
the 2002 ballot initiative, which gave tribes the exclusive 
right to conduct gaming. One key aspect of that campaign was 
the clear promise repeatedly made to voters by tribes and State 
officials that there would be no additional casinos in the 
Phoenix metro area. When Governor Hall concluded compact 
negotiations in 2002 with the 17 tribes, he publicly announced 
that under the compact, that there would be ``no additional 
casinos in the metropolitan Phoenix area.''
    Now, here is a voter pamphlet from the 2002 initiative 
campaign that was widely distributed by the 17 tribes. The 
pamphlet told voters that under the compact, ``there will be no 
facilities in Phoenix.'' If you look at page 6, which I have 
highlighted here, major funding for this pamphlet was provided 
by the Tohono O'odham Nation, who I will respectfully refer to 
as the TO.
    Understandably, the public was blindsided when Tohono 
O'odham announced in January of 2009 it was going to open a Las 
Vegas style casino on the 54 acre parcel within our city. At 
that time I was serving in the Arizona legislature, and I met 
with Tohono O'odham Chairman Norris, and I expressed my grave 
concerns about gambling within our city. The council 
immediately passed a resolution opposing the casino, because it 
would harm our residents and their way of life.
    Recently the city council voted four to three to repeal the 
2009 resolution opposing that casino. This was done only after 
the Interior Department had already decided to create a casino 
reservation on that parcel. We had no real choice; we could 
continue to fight and hope for action from this body or give 
up. It is frustrating to be a city of our size and have no 
voice on gambling pushed by a tribal government that is more 
than 100 miles away. The public has no right to object to 
gambling because of the narrow exception in the 1988 Indian 
Gaming Regulatory Act that Tohono O'odham is using that gives 
the Interior absolutely no authority to stop gambling, even if 
it knows adverse impacts to nearby neighborhoods, churches and 
the public school across the street.
    Since the Interior has no authority to stop gambling, it 
has no reason to ask the public for comments or investigate 
adverse impacts. This is a polar opposite to the two-part 
exception in IGRA, which is typically used for off-reservation 
casinos. It requires that the Interior prepare for an 
environmental impact statement and investigate in great detail 
adverse impacts that a casino may cause.
    What is more, for gambling to be allowed, the Secretary 
must determine on the record that the casino ``would not be 
detrimental to the surrounding community.'' And most 
importantly, the State's governor has the legal right to veto 
any casino project, regardless of the Secretary's decision.
    But in our case, the public has no say. The State 
legislature has no say. Our governor has no say, and the 
Interior has no authority to stop it. For us, this means that 
the largest tribal casino in the history of the State may 
operate on a 54-acre island in the middle of the Phoenix metro 
area without anyone investigating and addressing the adverse 
environmental and social impacts it will cause, and without any 
Federal, State or local official deciding that it can safely 
operate in the public's interest.
    What is more, my city may not be the last. Our sister 
cities realize that unless Congress acts, they may be next. 
Under the 1986 Gila Bend Act, Tohono O'odham claims that it can 
create a new reservation on land on more than 6,000 acres. It 
also claimed the right to operate a total of four new casinos 
in the Phoenix metro area. If Congress does not act, the entire 
Phoenix metropolitan area must be prepared for more off-
reservation casinos.
    That is why many mayors and city council members have 
signed a letter asking that Congress enact the Keep the Promise 
Act. As a former State legislator, I know that if gambling 
happens in Glendale, there will be a strong effort in the State 
legislature to authorize non-Indian gaming in all of Arizona. 
And that will have a devastating effect on all the tribes.
    I urge this Committee to move the Keep the Promise Act. The 
bill is about preserving the promises made to tribes by tribes 
to voters, protecting Phoenix metro cities from having unwanted 
gambling within their borders. Thank you, Chairman Tester. I 
will be happy to answer any questions.
    [The prepared statement of Mayor Weiers follows:]

   Prepared Statement of Hon. Jerry Weiers, Mayor, City of Glendale, 
                                Arizona

    Good afternoon Chairman Tester, Vice Chairman Barrasso and 
members of the Committee. My name is Jerry Weiers. I am the 
Mayor of Glendale, a city of 232,000 and the 72nd largest city 
in the country. Before becoming Mayor, I served eight years in 
the Arizona Legislature.
    I am here today to discuss my personal views on a 
controversial tribal casino proposed for my City. As Mayor, I 
am required to state that my views today do not represent the 
majority of the body of the Council and my views are not the 
official position of the Council.
    Like Senator McCain, I supported Arizona Proposition 202, 
the 2002 ballot initiative which gave tribes the exclusive 
right to conduct gaming. One key aspect of the initiative 
campaign was the clear promise, repeatedly made to voters by 
Tribes and State officials, that there would be ``no additional 
casinos in the Phoenix-metro area.''
    When Arizona Governor Hull concluded compact negotiations 
with the 17 Tribes, she publicly announced that under the 
compact, there would be--and I quote--''no additional casinos 
in the Phoenix metropolitan area.''
    [HOLD UP pamphlet] Here is a voter pamphlet from the 2002 
initiative campaign that was widely distributed by the 17 
Tribes. The pamphlet told voters that under the compact--and I 
quote--''there will be no additional facilities in Phoenix.'' 
Page 6 of the pamphlet says that major funding for it was 
provided by the Tohono O'odham Nation, who I will respectfully 
refer to as TO.
    Understandably, the public was blindsided when TO announced 
in January 2009 that it was going to open a Las Vegas-style 
casino on a 54-acre parcel within our City. No one gave us any 
warning. No one asked for our opinion. At that time, I was 
serving in the Arizona Legislature and I met with TO Chairman 
Norris and expressed my grave concerns about gambling within 
our City.
    The City Council immediately passed a resolution opposing 
the casino because it would harm our residents and their way of 
life. During the following five years, the City was involved in 
two lawsuits to stop the casino, at enormous financial cost.
    Recently the City Council voted 4-3 to repeal our 2009 
resolution opposing the casino. But this was done only AFTER 
the Interior Department had already decided to create a casino 
reservation on the parcel. We had no real choice--continue to 
fight and hope for action from this body, or give up. It is 
frustrating to be a city of our size and have no voice on 
gambling pushed by a tribal government more than a hundred 
miles away.
    The public has no right to object to gambling because the 
narrow exception in the 1988 Indian Gaming Regulatory Act that 
TO is using gives Interior absolutely no authority to stop 
gambling, even if it knows of adverse impacts to nearby 
neighborhoods, churches, and the 2,000-student public high 
school across the street, and even though Arizona Governor Jan 
Brewer formally objected. Since Interior has no authority to 
stop the gambling, there is no reason to ask the public for 
comments or investigate adverse impacts.
    This is polar opposite to the ``two-part'' exception in 
IGRA, which is typically used for off-reservation casinos such 
as this. It requires that Interior prepare an Environmental 
Impact Statement and investigate in great detail adverse 
impacts that a casino may cause. What's more, for gambling to 
be allowed, the Secretary must determine on the record that the 
casino, and I quote, ``would not be detrimental to the 
surrounding community.'' And, most importantly, the State's 
governor has the legal right to veto any casino project 
regardless of the Secretary's decision.
    But in our case, the public has no say, the State 
Legislature has no say, the Governor has no say, and Interior 
has no authority to stop it, despite adverse impacts. For us, 
this means that the largest tribal casino in the history of the 
State may operate on a 54-acre island in the middle of the 
Phoenix-metro area without anyone investigating and addressing 
the adverse environmental and social impacts it will cause, and 
without any federal, state or local official deciding that it 
can safely operate in the public interest.
    What's more my City may not be the last. Our sister cities 
realize that unless Congress acts, they may be next. Under the 
1986 Gila Bend Act, TO claims it can create reservation land on 
6,626 more acres. And, T.O. claims a right to operate a total 
of four new casinos in the Phoenix-metro area. If Congress does 
not act quickly, the entire Phoenix metropolitan area must be 
prepared for more off-reservation casinos. And that is why 8 
Mayors and many more City Council members have signed a letter 
asking that Congress enact the Keep the Promise Act.
    As a former State legislator, I know that if gambling 
happens in Glendale, there will be a strong effort in the 
Arizona Legislature to authorize non-Indian gambling in the 
State. And that will have a devastating effect on all Tribes.
    I urge this Committee to move the Keep the Promise Act. The 
bill is about preserving the promises made by Tribes to voters 
and protecting Phoenix-metro cities from having unwanted 
gambling within their borders.
    Thank you. I am happy to answer any questions.

    The Chairman. Thank you, Mayor Weiers. Councilman Sherwood?

STATEMENT OF HON. GARY SHERWOOD, COUNCILMAN, CITY OF GLENDALE, 
ARIZONA; ACCOMPANIED BY HON. SAMMY CHAVIRA, COUNCILMAN, CITY OF 
                       GLENDALE, ARIZONA

    Mr. Sherwood. Good afternoon, Chairman Tester and Members 
of the Senate Indian Affairs Committee. My name is Gary 
Sherwood, and I am a council member of the City of Glendale, 
Arizona.
    On behalf of Glendale, I am here today with my fellow 
council member and colleague Sammy Chavira. We are pleased to 
have been given the opportunity to present Glendale's official 
position on S. 2670, the so-called Keep the Promise Act.
    Let me be absolutely clear: the City of Glendale strongly 
opposes enactment of this legislation. The city twice has 
adopted official resolutions clearly expressing its opposition. 
And these resolutions have been provided to the Committee.
    In this opposition to S. 2670 and House Bill 1410, we have 
joined our sister cities Peoria, Tolleson and Surprise, all of 
which have long opposed this legislation. It is important to 
understand that collectively, our cities represent the vast 
majority of the population of Phoenix's West Valley.
    Our communities desperately need this economic development 
and employment opportunities which the Tohono O'odham Nation's 
casino and resort project bring to our area. In Glendale alone, 
almost 80,000 of the nearly 90,000 workers who live in Glendale 
must leave the city for their employment. In other words, 88 
percent of the wage earners who live in our community must 
travel elsewhere to work. Obviously, this job situation is a 
significant problem in our community.
    In the next 20 years, 65 percent of the growth in the 
Phoenix metropolitan area will occur in the West Valley. The 
existing casinos in the Phoenix area are overwhelming 
concentrated in the East Valley, and the West Valley resort 
will be over 20 miles away from the nearest of these existing 
casinos. There is no doubt that these successful facilities 
will continue to prosper.
    When I was first elected to the council in 2012, I knew we 
had to do our homework on a project like this. So I was stunned 
to learn that the prior Glendale administration had failed to 
make any effort to learn more about this proposed project 
before it rushed to oppose it. It was time to make decisions 
based on the facts. At the direction of my colleagues, 
Councilman Chavira, whose district actually borders the 
Nation's reservation, Councilman Ian Hugh, Councilwoman Norma 
Alvarez and myself, city staff spent months carefully examining 
every aspect of the Nation's proposed development.
    A minority of the Glendale City Council, including Mayor 
Weiers, continue to maintain their personal opposition to this 
project. But as President Reagan once said, ``Facts are 
stubborn things.'' The facts showed that we had been misled, 
not by the Nation but by the interests seeking to protect their 
overwhelming casino market share. Based on this misinformation, 
the city clearly rebuffed the Nation's good faith effort to 
forge a mutually beneficial relationship. I am proud that the 
city of Glendale has now opened a new chapter with the Nation 
and has entered into an agreement that will bring thousands of 
jobs and millions of dollars in direct benefit to the city.
    Today, the city of Glendale and the Tohono O'odham Nation 
are bound by ties of friendship. I recently had the honor of 
participating in a historic groundbreaking ceremony with 
Chairman Norris, a member of the Nation's legislative council, 
local and business leaders and hundreds of supporters. 
Construction of the project is now underway. This facility will 
be located next to our vibrant sports and entertainment 
district, an area that is represented by Council Member 
Chavira. We have talked to many business leaders in this area, 
including leaders of two professional sports teams and major 
hospitality developments, and they all support this West Valley 
project.
    I am sorry to report to the Committee that despite these 
benefits and the unequivocal views of Glendale residents who in 
poll after poll express overwhelming support for this West 
Valley resort, East Valley casino interests are again trying to 
interfere. Over the last several days, these casino interests 
have been using paid signature gatherers to mislead Glendale 
residents into signing a petition that challenges the city's 
agreement with the Nation. As has been widely reported to the 
press, these paid signature gatherers have been caught on tape 
lying to Glendale voters, suggesting that the petition is in 
favor of the West Valley resort. Thankfully, even Mayor Weiers 
has acknowledged that this dishonest publicity stunt will not 
in any way affect the city's agreement.
    I share the sentiments of a long-time Glendale business 
owner, who told me that this bill is more properly titled 
Keeping the Profits Act of 2014. For all these reasons, the 
city respectfully urges that the Federal Government should not 
interfere in our efforts to improve the lives of our citizens. 
Do not destroy this valuable partnership between the Tohono 
O'odham Nation and our community.
    Senator McCain, you did bring up a point about what this 
would do to other Phoenix area casinos. Again, a good share of 
the growth in the Valley of the Sun is going to take place in 
the West Valley over the next 20 years. Currently there are 
seven casinos that are considered in the metro Phoenix area. 
Six of them are in the far East Valley with the one being a 
little over 20 miles away. So I really don't think that is 
going to be a concern.
    Thank you for this opportunity to testify on this matter. I 
and Councilman Chavira will be pleased to answer any questions 
that you may have.
    [The prepared statement of Mr. Sherwood follows:]

Prepared Statement of Hon. Gary Sherwood, Councilman, City of Glendale, 
                                Arizona
    Good afternoon Chairman Tester and Members of the Senate Indian 
Affairs Committee. My name is Gary Sherwood, and I am a member of the 
City Council for the City of Glendale, Arizona. On behalf of the City 
of Glendale I am here today with my fellow City Councilmember and 
colleague Sammy Chavira. We are pleased to present the City of 
Glendale's official position on S. 2670, the companion bill to H.R. 
1410. Let me be clear: despite what you have heard from our mayor, the 
City twice has adopted resolutions which unequivocally state our 
opposition to H.R. 1410, and now S. 2670.
    This dangerous and wrongheaded legislation would prevent the City 
of Glendale from benefitting from the economic development and 
desperately needed employment opportunities which already have begun to 
be generated by the Tohono O'odham Nation's planned development for its 
West Valley reservation. Make no mistake, enactment of S. 2670 will 
have a unmistakably negative impact on the people of the West Valley, 
people who were disproportionally hit by the economic downturn that 
began with the home mortgage crisis in the late 2000s. For this reason, 
Glendale joins the other major municipal governments of the West 
Valley--the cities of Peoria, Tolleson and Surprise--in opposition to 
this legislation. Together, our cities make up the overwhelming 
majority of the population of the area west of Phoenix known as the 
``West Valley''.
    To put our views in perspective, I want to share with you that the 
West Valley's ability to provide employment opportunities to our own 
people lags badly behind the need. At a recent WESTMARC economic 
development forum it was noted that the West Valley is home to 39 
percent of the region's population (and our population is still 
growing)--but that only 24 percent of the jobs in our region are 
located West Valley. A recent studyfinds that ``51 percent of people 
who live in the region--Surprise, Peoria, Glendale and other cities--
work outside of it. . . . Of the total, only about 35,000 of the 
109,000 people surveyed both live and work in the Northwest Valley.'' 
West Valley jobs lag population growth, Arizona Republic (April 23, 
2014). This dynamic is particularly severe in Glendale. We can see from 
recent census reports that of the 88,699 workers living in Glendale, 
78,122 travel outside Glendale for their employment. ``On the Map,'' 
2011 Census. These numbers are staggering, and underscore the West 
Valley's desperate need for additional economic development 
opportunities.
    The City of Glendale is the proud home of the Arizona Cardinals 
football franchise, the Phoenix Coyotes hockey team, and the spring 
training facilities for the Los Angeles Dodgers and Chicago White Sox. 
The Tohono O'odham Nation's project is located near this area, and in 
our view will directly compliment the commercial development that will 
surround it. When the Nation announced its plans for the West Valley 
Resort in 2009, it immediately reached out to the City, even though its 
land was outside Glendale's city limits. The Nation also early reached 
out to other West Valley municipalities, and began a dialogue aimed at 
forging mutually beneficial working relationships with all of us in the 
local community.
    Our partnerships with the Tohono O'odham Nation are a shining 
example of what is possible when an Indian tribe and local communities 
work together, hand in hand, to bring positive economic development to 
fruition. The last thing our communities need is federal legislation 
which would intrude on our local decisionmaking, throw our citizens out 
of work, and deprive our economies of hundreds of millions of dollars 
in economic impacts. The specter of such legislation is all the more 
disheartening to Glendale and our counterparts in other West Valley 
cities because it is so clear that its main purpose is to legislate a 
monopoly for two other tribes who operate gaming facilities in the East 
Valley way over on the other side of Phoenix. As I have heard Peoria 
Mayor Barrett say over and over again, we are tired of seeing the buses 
that come every day to the West Valley to pick up gaming patrons and 
take them back over to the other side of the Valley to spend their 
entertainment dollars outside of their own local community. In the next 
twenty years, 65 percent of the growth in the Phoenix metropolitan area 
will occur in the West Valley. For these reasons, like the City of 
Glendale, the West Valley cities of Peoria, Surprise, and Tolleson, 
each have taken formal action to oppose H.R. 1410/S. 2670, and have 
expressed that opposition in writing to the Congress. See, Testimony of 
Hon. Robert Barrett on Behalf of the City of Peoria, Arizona, Before 
the Subcommittee on Indian and Alaska Native Affairs, Committee on 
Natural Resources, U.S. House of Representatives (May 16, 2013); Letter 
of Bob Barrett, Mayor, on Behalf of the City of Peoria, Arizona, to the 
Senate Committee on Indian Affairs; July 21, 2014 Letter of Sharon 
Wolcott, Mayor, on Behalf of the City of Surprise, Arizona to the 
Senate Committee on Indian Affairs; July 17, 2014 Letter of Adolfo 
Gamez, Mayor, on Behalf of the City of Tolleson, Arizona, to the Senate 
Committee on Indian Affairs.
    Because the City of Glendale has taken longer than most of its 
sister cities to recognize the tremendous value of the West Valley 
Resort, it is important to provide a bit of background on how we got 
here. I was elected to the Glendale City Council in late 2012. At the 
time I must admit I was skeptical about the Tohono O'odham Nation's 
West Valley Resort and Casino proposal. The City had previously entered 
into several hundred-million-dollar development deals that resulted in 
the City paying substantial subsidies to private interests. As a direct 
consequence, Glendale was facing a huge budget crisis, and it seemed as 
if this project might be a drain on the City's already scarce 
resources.
    Given this history, and my experience serving for decades on 
numerous boards, commissions, and task forces in my community prior to 
my election to the City Council, I knew we had to do our homework when 
considering massive economic development projects like this one. So 
when I received my first briefings on this project as a member of the 
City Council, I was stunned to learn that the prior Glendale 
administration, which opposed the West Valley Resort, had engaged in no 
fact-finding on the project and had refused to engage in any dialogue 
with the Nation at all. This despite the fact that the Nation had made 
significant attempts to meet City officials and despite the fact that 
over a dozen administrative and court decisions had confirmed the 
Nation's right to acquire the West Valley Resort land in trust under 
its land claim settlement act and conduct gaming on the site.
    Meanwhile, the other major cities in the West Valley had long ago 
accepted the Nation's invitation for dialogue, and as noted above these 
cities have since expressed formal support for the project. So in 2013, 
the City opened a formal dialogue with the Nation on this project, and 
engaged on a nearly-six-month fact finding mission to carefully explore 
the pros and cons of this development. After receiving regular, 
detailed updates from staff over several months, the City Council 
formally voted in March 2014 to begin formal negotiations with the 
Tohono O'odham Nation in order to see whether we could reach agreement 
on the project. At that time, we also formally voted as a Council to 
oppose H.R. 1410, a position that a majority of our councilmembers 
already had expressed individually on numerous occasions.
    While a few individual members of the Glendale City council, 
including Mayor Weiers, have continued their misguided opposition to 
this project, they are in the distinct minority, both in terms of the 
City Council and the West Valley. They remain out of step with the more 
than two-thirds of Glendale residents who have consistently supported 
this project for the last five years. To put it simply, they are 
entitled to their views, but these views are their own personal views, 
and do not represent the official position of the City of Glendale. I 
fear that these individuals have turned a deaf ear to the facts and 
instead have fallen prey to the misinformation being peddled by East 
Valley casino interests seeking to protect their market share. This 
misinformation was on display this past July, when Mayor Weiers 
testified before this Committee in an oversight hearing on Indian 
gaming. Unfortunately, Mayor Weiers used the opportunity to vigorously 
present his personal views, which were in direct opposition to the 
actual and official position of the City of Glendale.
    But as former President Ronald Reagan once said, ``facts are 
stubborn things.'' When the majority of my colleagues on Council and I 
were presented with the facts about the West Valley resort and casino 
it became clear that this project was right for our community. Through 
this process, we learned a great deal, not only about jobs and positive 
economic impact, but also about the history of the Nation's plans and 
gaming in Arizona. We examined, with open minds, the claims made by the 
Nation's opponents--claims that the Nation had hid its intentions from 
other tribes or that the tribes had promised that there would be ``no 
new casinos in Phoenix.'' When we looked at the facts, presented in 
administrative and court proceedings, we found these claims totally 
lacking. Evidence presented in federal court showed that East Valley 
casino interests and State legislators knew about the Nation's rights 
under its settlement act and in fact sought prohibitions on gaming 
similar to H.R. 1410/S. 2670 during negotiations over the gaming 
compacts. However, these market protection prohibitions were rejected 
and were never incorporated into the compact that the State of Arizona 
and all the tribes (including the East Valley tribes) signed.
    In other words, East Valley interests are now seeking to obtain 
from Congress through H.R. 1410/S. 2670 the prohibitions that they were 
unsuccessful in negotiating back in 2002--at the expense of my 
community in the West Valley and in violation of the promises made to 
the Tohono O'odham Nation. These opponents have spent lots of money and 
thrown every conceivable form of mud against the wall, but none of it 
has stuck. H.R. 1410/S. 2670 is just the latest attempt to protect East 
Valley casino market share. As a longtime Glendale business owner 
recently said to me, this legislation is more properly titled the 
``Keeping the Profits Act of 2014.''
    After careful examination of these facts, the City formally voted 
in July and August to support the use of the Nation's West Valley 
Resort property for gaming and to enter into a formal agreement that 
provides significant mutual benefits to the City for years to come. 
Under the uniform Arizona tribal-state gaming compacts, Indian tribes 
are required to share a portion of their gaming revenues with the State 
of Arizona. However, unlike some gaming compacts in other states, there 
is no requirement that this revenue go to particular communities. 
Instead, in Arizona, while tribes must devote a portion of this revenue 
sharing to local communities, it is up to each to tribe to determine 
which communities receive these grants. To my knowledge, the agreement 
that the City has struck with the Tohono O'odham Nation goes well 
beyond any other tribal gaming revenue grant or casino impact agreement 
in Arizona in terms of direct benefits to a municipality. Under the 
agreement:

   The City will receive funding in excess of $26 million 
        during the 20-year term of the agreement;

   The City has already received an initial good faith payment 
        of $500,000;

   Unlike development deals that the City has entered into in 
        prior decades, the City will not pay one dime to the Nation for 
        construction costs, infrastructure costs in and around the 
        site, and municipal services such as water and wastewater. 
        Instead, the Nation will pay for all of these costs;

   The Nation will pay Glendale's monthly standard fees and 
        service charge rates for commercial customers on the site.

    More important to the City than these specified benefits, however, 
are the jobs, economic impacts, and revenue sharing that the project is 
beginning to generate for the West Valley and the State of Arizona.
    I am sorry to report that despite these benefits and the views of 
Glendale residents (who in poll after poll express overwhelming support 
for the West Valley Resort), East Valley casino interests are now 
paying signature gatherers to mislead Glendale residents into signing a 
petition to challenge the City's agreement with the Nation. As has been 
widely reported in the press, these paid signature gatherers have been 
caught on tape lying to Glendale voters, suggesting that the petition 
is in favor of the West Valley Resort. Thankfully, even Mayor Weiers 
has acknowledged that this dishonest publicity stunt will not in any 
way affect the City's agreement.
    I recently had the honor of participating in an historic 
groundbreaking ceremony on the project site with Tohono O'odham Nation 
Chairman Ned Norris, construction and building development 
representatives, and more than 200 other tribal and municipal leaders. 
I have not seen such a demonstration of regional cooperation since we 
collaborated on building the Arizona Cardinals Stadium in Glendale more 
than a decade ago. Construction on the West Valley Resort site is now 
underway.
    I have met personally with representatives of the other major 
sports, entertainment and retail industries in Glendale, including the 
Phoenix Coyotes, Arizona Cardinals, Tanger Outlet Mall, the Renaissance 
Hotel, and many other restaurants and businesses, all of whom have 
expressed support for the Nation's project and the secondary benefits 
that it will bring to their franchises. We also have heard from other 
developers who are excited about the West Valley Resort and who are now 
interested in investing in our community. In short, this project is 
already beginning to pay dividends.
    For all these reasons I respectfully urge Congress not to reach 
back from Washington, D.C. to interfere in our efforts to improve the 
lives of our citizens. Do not crush the dreams of my constituents and 
those of my sister cities, who have waited patiently for the jobs, 
investment in our community, and economic development which this 
project already has begun to bring to the West Valley. We urge the 
Senate Indian Affairs Committee to see past the misinformation campaign 
waged by East Valley casino interests which are pushing a false 
narrative in order to change federal law and break a promise made by 
President Reagan and the U.S. Congress to the Tohono O'odham Nation 
more than twenty-five years ago. Congress should be doing everything it 
can to foster economic development and positive working relationships 
between tribal and local governments, not moving forward special 
interest, market-protection legislation. The City of Glendale is asking 
you not to destroy this valuable partnership between the Tohono O'odham 
Nation and my community. We are emphatically urging this Committee to 
prevent H.R. 1410/S. 2670 from moving forward out of this Committee, 
and urging the Committee to do everything in its power to ensure that 
it does not become law.
    On behalf of the City of Glendale, I want to thank you for this 
opportunity to testify on this matter, which is of such great 
importance to the City of Glendale. I and Councilman Chavira would be 
pleased to answer any questions that the Committee may have.

    The Chairman. Thank you, Councilman Sherwood. Chairman 
Norris?

  STATEMENT OF HON. NED NORRIS, JR., CHAIRMAN, TOHONO O'ODHAM 
                       NATION OF ARIZONA

    Mr. Norris. Chairman Tester, Senator McCain and honorable 
members of the Committee, good afternoon.
    This is now the fourth time that I have come before 
Congress to testify about this legislation. If enacted, it 
would commit a profound injustice against the Tohono O'odham 
Nation and set a terrible precedent for Indian Country. 
Although I do very much appreciate the opportunity to provide 
our views on this bill, the Nation is profoundly disappointed 
that Congress continues to entertain the cynically-named Keep 
the Promise Act.
    This legislation shows no respect for the clear terms of 
the 1986 settlement agreement between the Nation and the United 
States, no respect for the contractual agreement between the 
Nation and the State of Arizona in our 2003 gaming compact, no 
respect for the Federal courts and administrative agencies 
which, in 16 decisions, have reviewed the settlement, the 
compact, the law and found in favor of the Nation, and no 
respect for the United States' trust responsibility to the 
Tohono O'odham Nation.
    At the heart of this matter, as I have testified 
previously, is the fact that the Corps of Engineers destroyed 
nearly 10,000 acres of the Nation's Gila Bend Reservation in 
Maricopa County. In 1986, Congress enacted the Gila Bend Indian 
Reservation Lands Replacement Act to compensate the Nation for 
the loss of its land and valuable water rights. An important 
part of this settlement is the right to acquire replacement 
land that has the same legal status as the destroyed land.
    Most of our reservation land is located in remote, isolated 
areas. Our population is one of the poorest in the United 
States, with average individual incomes just over $8,000. As 
Congress clearly provided in 1986, the Nation will develop its 
replacement reservation land to generate revenue for public 
services and employment for our people.
    In deciding to use our land for gaming, we relied on the 
plain language of the Gila Bend Act, which promises that we can 
use our replacement land as a Federal reservation for all 
purposes, the Indian Gaming Regulatory Act, which explicitly 
allows settlement lands to be used for gaming, and our tribal-
State gaming compact, which the State and all Arizona gaming 
tribes negotiated and signed and which explicitly allows gaming 
on new lands consistent with the requirements of IGRA.
    The Nation has had it with the constant misinformation and 
rhetoric about back room deals and secret plots. These 
arguments have been litigated and rejected by the courts. Here 
are the facts. Not only is the Gila Band Act a public law that 
was the subject of extensive hearings in the 1980s, its land 
acquisition authority was explicitly preserved in the 2004 
Arizona Water Settlements Act, by which Gila River Indian 
Community secured its enormously valuable water rights 
settlement.
    Further, not only does the tribal-State compact clearly 
allow the Nation to game on this settlement land in Maricopa 
County, it also explicitly prohibits outside agreements which 
would change the compact terms.
    Our sister tribes have long benefited from the advice of 
numerous experienced attorneys. The idea that these tribes have 
no understanding of the Nation's rights under the plain 
language of the Gila Bend Act, IGRA and the tribal-State 
compact is, as the United States courts declared, ``entirely 
unreasonable.''
    The Gila River Indian Community, the Salt River Indian 
Community and the Tohono O'odham Nation are relatives and 
friends. Our shared history is vitally important to the Nation. 
But these tribes' continued assault on the Nation's rights has 
taken a toll. We ask these tribes to carefully consider the 
damage their efforts are causing, both in Arizona and in Indian 
Country generally.
    Honorable members of the Committee, the Nation respectfully 
urges that you put an end to this misguided, cynical 
legislation. It breaks the promises made by the United States 
and in Indian land and water rights settlements. It 
unilaterally amends the negotiated terms of federally-approved 
tribal-State gaming compacts. Most of all, it is a return to a 
dishonorable era of Federal Indian policy and will leave a 
black mark on this Committee and this Congress' legacy.
    Thank you. I would be pleased to answer any questions the 
Committee may have.
    [The prepared statement of Mr. Norris follows:]

 Prepared Statement of Hon. Ned Norris, Jr., Chairman, Tohono O'odham 
                                 Nation
    My name is Ned Norris, Jr. I am the elected Chairman of the Tohono 
O'odham Nation. The Nation is a federally recognized tribe with more 
than 32,000 members. Our people have lived since time immemorial in 
southern and central Arizona where our non-contiguous reservation 
lands--including our West Valley Reservation in Maricopa County--are 
located. I thank Chairman Tester and the Committee for holding a 
legislative hearing on H.R. 1410/S. 2670, and for giving the Nation an 
opportunity to testify about this bill. If enacted, this legislation 
will effect a profound injustice upon the Tohono O'odham Nation, one 
that will besmirch the United States' honor and set a terrible 
precedent for its relationship with Indian Country. The Nation is 
deeply disappointed that Congress is even considering this 
legislation--a bill that shows no respect for the clear terms of 
agreements negotiated between sovereign governments, that would break 
the promises the United States has made to my Nation, in a land and 
water settlement we all agreed to, and that will re-open up water 
rights claims on the Gila River. I come before Congress, now for the 
fourth time, to highlight the many problems with this legislation.
    On July 23rd, during this Committee's oversight hearing on Indian 
gaming, I submitted testimony describing the destruction of our Gila 
Bend Indian Reservation in Maricopa County, the result of perpetual 
flooding caused by a dam built by the United States Army Corps of 
Engineers. I also described the federal legislation enacted in 1986 to 
compensate the Nation for its losses and the Corps' wrongdoing--the 
Gila Bend Indian Reservation Lands Replacement Act (Pub. L. 99-503). 
Because I would like to focus my remarks today on the far-reaching, 
negative precedent that this bill would set, I will only briefly 
summarize my prior testimony about the destruction and loss of property 
and water rights suffered by the Nation.
Historical Context: Destruction of Thenation's Gila Bend Reservation 
        and the 1986 Gila Bend Act
    In the 1950s, the Corps of Engineers built the Painted Rock Dam to 
protect large commercial farms downstream from our Gila Bend 
Reservation, which at that time contained about 10,000 acres of prime 
agricultural land. The dam caused perpetual flooding of the 
reservation, destroying our homes and our farms, making the land 
unusable, and forcing the residents to move to a 40-acre parcel known 
as San Lucy Village. Our tribal members continue to live there today, 
well below the poverty line, with multiple families crowded into small 
substandard housing. The Corps had no Congressional authorization or 
tribal consent to flood our land, and the resulting destruction 
constituted a taking of our property rights as well as a significant 
breach of trust by our federal trustee.
    In an effort to avoid litigation, Congress instructed the 
Department of the Interior to search for agricultural replacement lands 
within a 100-mile radius of our flooded reservation, but none could be 
found. As a result, in 1986 Congress enacted legislation that would 
instead compensate the Nation by providing the Nation the right to 
locate and acquire replacement lands in Maricopa, Pima or Pinal 
Counties (where our various reservation areas are located). In exchange 
the Nation was required to relinquish its title to nearly all of the 
Gila Bend reservation lands and the water rights appurtenant to it, and 
its legal claims against the United States. That settlement statute, 
the Gila Bend Indian Reservation Lands Replacement Act (Pub. L. 99-503) 
(Gila Bend Act), provided that the Nation's replacement lands were to 
have the same status as the lands that we lost, i.e., the replacement 
lands are to be treated as a ``Federal Indian Reservation for all 
purposes.'' Id.,  6(d) (emphasis added). The Gila Bend Act also made 
clear that Congress' intention was to ``facilitate replacement of 
reservation lands with lands suitable for sustained economic use which 
is not principally farming.'' Id.  2(4) (emphasis added). In addition, 
the United States would pay the Nation $30 million, which was only a 
small fraction of the value of our lost land and water rights.
    As Senator DeConcini (one of the sponsors of the Gila Bend Act) 
noted on the pending bill, ``Over 3 years of work have gone into this 
settlement.[P]rofessional staff of the House Interior Committee, as 
well as other staffs, have spent a great deal of time on trying to 
develop a fair and reasonable settlement.'' 132 Cong. Rec. S14457-01 
(October 1, 1986). Relying on the United States' promises in this 
settlement legislation, (which Act the Department of the Interior has 
described as ``akin to a treaty,'' Tohono O'odham Nation v. Acting 
Phoenix Area Director, Bureau of Indian Affairs, 22 IBIA 220, 233 
(1992)) the Nation executed a settlement agreement in 1987, giving up 
our right to sue the United States and relinquishing our land and water 
rights claims.
The Gila Bend Act Makes Clear That Our Land is a ``Federal Indian 
        Reservation for All Purposes''--Including Gaming
    At the same time Congress was considering the Gila Bend Act, it 
also was holding extensive hearings on predecessor Indian gaming 
legislation that ultimately would become the Indian Gaming Regulatory 
Act, Pub. L. 100-497 (IGRA). \1\ Two years prior to passage of the 1986 
Gila Bend Act, the Department of the Interior testified before the 
House Interior and Insular Affairs Committee that 80 Indian tribes were 
engaged in some form of gaming on their reservations. H. Hrg. No. 98-
46, at 62 (June 19, 1984). \2\ The Nation (then known as the Papago 
Tribe) was one of these tribes, having operated Papago Bingo on one of 
its reservations outside Tucson since 1984. Id., at 117. \3\
---------------------------------------------------------------------------
    \1\ See, e.g., Hrg. No. 98-46, on H.R. 4566 (June 19, 1984); H.R. 
6390, Indian Country Gambling Regulation Act (98th Congress); H.R. 
4566, Indian Gambling Control Act (98th Congress); Hrg. No. 99-55 Part 
I, on H.R. 1920 & H.R. 2404 (June 25, 1985); Hrg. No. 99-207, on S. 902 
(June 26, 1985); Hrg. No. 99-55 Part II, on H.R. 1920 & H.R. 2404 (Nov. 
14, 1985); H. Rep. No. 99-488, to accompany H.R. 1920 (Mar. 10, 1986); 
Hrg. No. 99-887, on S. 902 (June 17, 1986); S. Rep. No. 99-493, To 
Accompany H.R. 1920 (Sept. 24, 1986); H.R. 3130, An Act to Prohibit 
Granting of Trust Status to Indian Lands to be used for the Conduct of 
Gaming Activities (99th Congress); S. 2557, Indian Gaming and 
Authorization Act of 1986 (99th Congress); Amendment No. 3226, to H.R. 
1920, 134 Cong. Rec. S15390 (Oct. 6, 1986); H.R. 1920, Indian Gambling 
Control Act--(99th Congress); S. 902, Indian Gambling Control Act (99th 
Congress); see also, Franklin Ducheneaux, The Indian Gaming Regulatory 
Act: Background and Legislative History, Arizona State Law Journal, 
Volume 42, Number 1, Spring 2010, 99.
    \2\ In contrast, prior to IGRA's enactment, if Congress wanted to 
restrict or ban gaming on new trust land, Congress explicitly included 
language to that effect. See, e.g., the Florida Indian Land Claims Act 
of 1982, Pub. L. 97-399 (Dec. 31, 1982), the Ysleta del Sur Pueblo 
Restoration Act, Pub. L. 100-89, Tit. I (Aug. 18, 1987) and the Alabama 
and Coushatta Indian Tribes of Texas Restoration Act, Pub. L. 100-89 
Tit. II (Aug. 18, 1987). If Congress had intended to impose a similar 
restriction on the Nation, it would have done so explicitly in the 1986 
Gila Bend Act--but it did not. Just as important, the Nation absolutely 
never agreed to such a condition, and no such condition exists in the 
1987 settlement agreement signed by the Nation and the United States.
    \3\ The Nation's gaming establishment was discussed again in IGRA 
predecessor legislation hearings before the same Committee in 1985. 
Hrg. No. 99-55 Part I, on H.R. 1920 & H.R. 2404 at 29.
---------------------------------------------------------------------------
    Given this history, and given the fact that the Gila Bend Act 
itself requires that the settlement land acquired under the Gila Bend 
Act ``shall be deemed to be a Federal Indian Reservation for all 
purposes,'' there can be no serious argument that Congress could not 
have foreseen that this land would be used for gaming. To the contrary, 
Congress ensured that the replacement lands would have the same legal 
status as the Nation's destroyed Gila Bend reservation. In IGRA, 
Congress similarly sought to ensure that lands acquired in trust after 
IGRA's 1988 enactment date as part of the settlement of a land claim 
would be treated equally to the pre-IGRA claim lands they were intended 
to replace (i.e., the new lands would be gaming-eligible just as were 
the claim lands that were lost). As explained by former Interior 
Secretary Salazar:

         Certain lands that are acquired after IGRA's passage in 1988 
        are treated under the statute as though they were part of pre-
        IGRA reservation lands, and, therefore, are eligible for gaming 
        purposes. . .Lands that are taken into trust for settlement of 
        a land claim, as part of an initial reservation, or as 
        restoration of lands for a tribe that is restored to federal 
        recognition are also excepted from the IGRA prohibition in 
        order to place certain tribes on equal footing.

    See Memorandum from the Secretary to the Assistant Secretary for 
Indian Affairs, ``Decisions on Gaming Applications'' (June 18, 2010) at 
2 (emphasis added), available at http://www.bia.gov/cs/groups/public/
documents/text/idc009878.pdf. Indeed, lands acquired pursuant to the 
1986 Gila Bend Act are the quintessential type of lands that IGRA 
intended to protect through the equal footing exceptions. Under the 
Act, the Nation may acquire land to replace the acreage destroyed by 
the Painted Rock Dam see Pub. L. 99-503 at Section 6(c) so that the 
replacement land will have the same gaming eligibility status as the 
land it replaces.
The Nation's West Valley Reservation
    In keeping with the requirements of the Gila Bend Act, which limit 
the location and the amount of replacement land the Nation may acquire, 
the Nation purchased unincorporated land in Maricopa County located in 
the ``West Valley'' (an area west of the City of Phoenix). The land is 
about 49 miles from the Gila Bend Reservation, between the cities of 
Glendale and Peoria. Both the federal courts and the Department of the 
Interior have determined that our West Valley land meets the strict 
statutory requirements in the Gila Bend Act. In July the Department of 
the Interior complied with its congressionally-imposed duty to acquire 
the land in trust, and it is now a part of the Tohono O'odham 
Reservation. Letter of Kevin Washburn, Assistant Secretary--Indian 
Affairs, United States Department of the Interior, to Ned Norris Jr., 
Chairman, Tohono O'odham Nation (July 3, 2014).
    Although the Nation's West Valley reservation is a significant 
distance (more than twenty miles) from other tribal gaming operations 
in the Phoenix metropolitan area, a few tribes with Phoenix area gaming 
facilities vigorously urge passage of S. 2670/H.R. 1410. Early on they 
urged that the legislation was necessary because the Nation's actions 
violated the Gila Bend Act, the Nation's tribal-state gaming compact, 
and IGRA. When the federal courts rejected their claims, these tribes 
started to shift to new arguments. Most recently, they claim that the 
legislation is needed to prevent the Nation from violating some 
unwritten, back-room promise, and they further argue that without the 
legislation, there will be no way to stop an explosion of new gaming in 
the East Valley (the area east of the City of Phoenix). In fact, these 
tribes vigorously oppose the Nation's project because they have long 
enjoyed a monopoly in one of the biggest gaming markets in the United 
States, and the simple fact is that they would prefer not to share that 
market. Based on these market share concerns, they have urged the 
introduction and enactment of S. 2670 and its companion bill H.R. 1410.
    Their arguments having been rejected in every other venue, the 
proponents of H.R. 1410/S. 2670 come to Congress as a last resort to 
ask it to enact legislation that unilaterally inserts into the Nation's 
tribal-state gaming compact a new restriction which was never 
negotiated and to which the Nation never would have agreed--a 
prohibition against developing our West Valley reservation the way we 
have every right to do under the Gila Bend Act, the Indian Gaming 
Regulatory Act, and our Secretarially-approved tribal-state gaming 
compact. This use of a unilateral amendment to eviscerate our land and 
water rights settlement is unprecedented--Congress has never in the 
modern era unilaterally abrogated either a settlement or a tribal-state 
gaming compact. And it should not start now.
H.R. 1410/S. 2670 Is Dangerous Precedent
    As discussed in more detailed elsewhere, the Gila Bend Act settles 
the Nation's claims for the unauthorized flooding of nearly 10,000 
acres of its Gila Bend Reservation, providing for the purchase of 
replacement lands that will be treated the same as the Nation's lost 
reservation lands. In exchange, the Nation gave up it legal claims 
against the United States, including its water rights claims, and title 
to its Gila Bend reservation lands. H.R.1410/S. 2670 would 
fundamentally alter these terms by no longer treating the Nation's 
replacement land as a ``federal reservation for all purposes''--
enactment of this legislation would mean that the replacement land 
henceforth will be treated as ``a federal reservation for all purposes 
except Indian gaming''.
    In testimony before the House Natural Resources Committee on S. 
2670's companion bill H.R. 1410 and its predecessor bill H.R. 2938, the 
Department of the Interior has twice opposed the proposed legislation 
in no small part because it unilaterally interferes with a federally-
enacted settlement and a federally-approved tribal-state gaming 
compact. See Testimony of Paula Hart, Director, Office of Indian 
Gaming, U.S. Department of the Interior, Before the Subcommittee on 
Indian and Alaska Native Affairs, Committee on Natural Resources, U.S. 
House of Representatives (October 4, 2011); Testimony of Michael Black, 
Director, Bureau of Indian Affairs, United States Department of the 
Interior, Before the Subcommittee on Indian and Alaska Native Affairs, 
Committee on Natural Resources, U.S. House of Representatives (May 16, 
2013) . The Department's objections have remained consistent, noting 
that:

         H.R. 1410 would negatively impact the Nation's ``all 
        purposes'' use of selected lands under the Gila Bend Act by 
        limiting the Nation's ability to conduct Class II and Class III 
        gaming on such selected lands. . .H.R. 1410 would specifically 
        impact the Gila Bend Act by imposing additional restrictions 
        beyond those agreed upon by the United States and the Tohono 
        O'odham Nation 25 years ago. The Department cannot support 
        legislation that specifically impacts an agreement so long 
        after the fact. . .The effect of this legislation would be to 
        add a tribespecific and area-specific limitation to the IGRA.

        Black Testimony at 2-3(emphasis added).

    The Department further underscored its concern ``about establishing 
a precedent for singling out particular tribes through legislation to 
restrict their access to equal application of the law.'' Id. We 
understand that the Department of the Interior will again testify at 
this hearing, and we trust it will raise the same concerns with the 
Senate Indian Affairs Committee as it did with the House Natural 
Resources Committee.
    In her testimony before the Committee, outgoing Salt River Indian 
Community President Diane Enos argued that H.R. 1410 would not create a 
dangerous precedent, and she insisted that that there are other 
examples of federal legislation similar to H.R. 1410. Testimony of 
President Diane Enos, Oversight Hearing on ``Indian Gaming: The Next 25 
Years,'' at 4-5 (July 23, 2014). But this is untrue, and each of her 
examples is demonstrably misleading. None of the legislation she 
identified involved the kind of settlement agreement reached between 
the United States and the Nation, where in return for giving up its 
destroyed reservation, the United States agreed to take land into trust 
for the Nation and treat it as a ``Federal Indian Reservation for all 
purposes.'' In fact, few of the statutes she cited involved any sort of 
settlement agreement at all. For example, the Colorado River Indian 
Reservation Boundary Correction Act, the Siletz and Grand Ronde Tribe 
acts, and the Indian Pueblo Cultural Center Clarification Act all 
involved land grants by Congress without the kind of contract and trust 
promises that are central to the Nation's settlement act and agreement. 
See Pub. L. 10947 (Aug. 2, 2005); Pub. L. 110-78 (Aug. 13, 2007); and 
Pub. L. 111-354 (Jan 4. 2011). Others, like the amendments to the Rhode 
Island Indian Claims Settlement Act, concerned the ability of the State 
of Rhode Island to prohibit gaming by multiple tribes when those tribes 
had agreed to state jurisdiction as part of the original settlement. 
See Pub. L. 104-208; Narragansett Indian Tribe v. Nat'l Indian Gaming 
Comm., 158 F.3d 1335 (D.C. Cir. 1998)). In contrast, H.R. 1410 would 
have Congress unilaterally amend an agreement with a single Indian 
tribe that would eliminate legal rights that this tribe possesses. 
Finally, the amendments to the Mashantucket Pequot Settlement Act 
provided for additional benefits to the tribe (in the form of lease 
extensions) at that Tribe's request. See Pub. L. 110-228.
    In short, amending settlement legislation over the express 
objection of the Department of the Interior (which now holds title to 
the land) and the Nation (for whose beneficial interest the land is 
held in trust) cannot even remotely be analogized to ``routine 
restrictions'' on ``legislation involving Indian land'' or 
``revisit[ing] existing statutes to clarify the party's intent'' as 
former President Enos urged. None of the examples cited by the tribal 
proponents of H.R. 1410/S. 2670 are similar or even relevant to the 
statutory provisions in S. 2670, which would fundamentally change the 
terms of an existing land and water rights settlement reached by the 
Nation and the United States some 25 years ago over the objections of 
both of the parties to that settlement. H.R. 1410/S. 2670 thus serves 
as a powerful disincentive to tribes that are considering whether or 
not to enter into settlement agreements.
    Think of it this way. If H.R. 1410/S. 2670 is deemed acceptable for 
enactment, then there also is no reason why Congress should not, at the 
behest of competing water users, ``impose additional restrictions 
beyond those agreed upon by the United States and the [Community]'' on 
the Gila River Indian Community pursuant to the Arizona Water 
Settlements Act, Pub. L. 108-451, and no reason why Congress should not 
pass legislation that ``specifically impacts'' the Salt River Pima- 
Maricopa Indian Community Water Rights Settlement Act, Pub. L. 100-512. 
Such legislation might, for example, impose additional unilateral 
restrictions on the manner of each Tribe's use of the water rights 
allocated under their respective settlement agreements. The Nation has 
no doubt that if Congress were trying to unilaterally amend either of 
these tribes' settlements, these tribes would object as strenuously as 
the Nation does to H.R. 1410/S. 2670.
    Given the United States' long, ugly history of unilaterally 
breaking its treaties with tribal nations, this Congress should think 
long and hard about reviving that dishonorable legacy with this 
legislation.
If Enacted, S. 2670 Will Create New Liabilities for the United States 
        and 
        Destabilize Ongoing Water Rights Litigation
    Because S. 2670 would deny the benefits that the United States 
promised to the Nation in return for the Nation waiving its land and 
water rights claims (by preventing the Nation from using its West 
Valley Reservation for economic development and as a reservation for 
all purposes), it would effectively unravel the settlement agreement 
embodied in the Gila Bend Act, giving rise to new takings and breach of 
contract claims against the United States and upsetting active water 
rights litigation.
Fifth Amendment Takings Claim
    The U.S. Constitution provides that private property may not be 
``taken for public use, without just compensation.'' See U.S. Const., 
amend. V; Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 
124 (1978). S. 2670 would take away the Nation's right, as confirmed by 
the court in the litigation brought by the Nation's opponents, to use 
its West Valley Reservation for gaming-related economic development. 
See Forest County Potawatomi Cmty. of Wis. v. Doyle, 828 F. Supp. 1401, 
1408 (W.D. Wis. 1993) (Indian tribe had a property interest in the 
right to game under its Tribal-State compact). By interfering with the 
Nation's investment-backed expectations that it can conduct gaming on 
its West Valley reservation under its tribal-state compact and thereby 
causing substantial economic harm to the Nation, S. 2670 would effect a 
taking that requires just compensation, and therefore exposes United 
States to liability for substantial damages.
Breach of Contract
    The Gila Bend Act provided that, in return for waiving its claims 
against the United States and giving up title to its land and water 
rights on the Gila Bend Reservation, the Nation could acquire 
replacement lands in unincorporated Maricopa, Pima, or Pinal Counties 
that would be treated as a reservation ``for all purposes.'' In 1987, 
the Nation entered into a settlement agreement--i.e., a contract--with 
the United States in which it did indeed relinquish its claims and its 
land and water rights in consideration for the United States' promises 
in the 1986 Gila Bend Act. S. 2670 breaches that agreement. It is 
settled law that when the United States enters into a contract, its 
rights and duties under the contract are governed by the same law 
applicable to contracts between private individuals. United States v. 
Winstar Corp., 518 U.S. 839, 895 (1996). If S. 2670 is enacted into 
law, the Nation will sue the United States for breach of this 1987 
agreement. Damages will likely be substantial, based on the fact that 
lost future profits from the Nation's planned gaming facility during 
the term of the compact would amount to hundreds of millions of 
dollars, if not more.
Water Rights Claims
    The legislative history underpinning the Gila Bend Act makes clear 
that a ``major component in [the tribe's] valuation of the reservation 
is its as-yet unquantified Winters right to the surface and underground 
flow of the Gila River, with a priority date of 1882.'' H.R. Rep. 99-
851 at 8 (1986). Thus, when the Nation gave up its right to the Gila 
Bend Indian Reservation, it also gave up its right to the water rights 
appurtenant to it. The legislative history explains, ``Expressed in 
terms of practicably irrigable acres times 5.4 acre-feet, this right 
could amount to as much as 32,000 acre-feet. . . [T]he tribe thus views 
the value of their land and its water and any damage claims against the 
United States and third parties to be in excess of $100,000,000.'' Id., 
at 8-9 (emphasis added). In other words, the lost water right alone was 
worth in excess of one hundred million dollars in 1986--certainly that 
water would be worth even more today.
    By unilaterally altering the terms of the settlement agreement, 
H.R. 1410/S. 1670 effectively reopens claims that were settled by the 
agreement, including the Nation's claims to nearly 36,000 \4\ acre-feet 
of water per year and additional water rights-related damage claims 
against the United States and third parties worth in excess of 
$100,000,000 (in 1986 dollars). Because the Gila Bend Reservation has 
an 1882 priority date, the Nation's 36,000 acre-feet per year would 
have priority over the vast majority of claimants in the ongoing Gila 
River General Stream Adjudication. Litigation over the quantification 
and delivery of the Nation's Gila River water rights is ongoing, and 
this legislation therefore would destabilize the adjudication of the 
water rights claims of thousands of municipal and private interests 
throughout Arizona with junior priority dates.
---------------------------------------------------------------------------
    \4\ The United States later determined that the 32,000 acre foot 
figure cited in the Gila Bend Act's legislative history was in fact too 
low, and filed a claim for 35,965 acre feet of water in the Gila River 
Adjudication. See, Statement of Claimant, United States ex rel. Gila 
Bend Indian Reservation Tohono O'odham Nation, No. 39-35090 (Ariz. 
Super. Ct. Maricopa County Mar. 25, 1987).
---------------------------------------------------------------------------
H.R. 1410/S. 2670 Breaks the Court-Confirmed Promises Embodied in the 
        Tribal-State Compacts
    Apart from setting dangerous precedent in the context of Indian 
land and water rights settlements, H.R. 1410/S. 2670 also interferes 
with the mutually-agreed to contractual promises that are embodied in 
the tribal-state compacts entered into by the State of Arizona, the 
Nation, and the Gila River and Salt River tribes. Although the 
proponents of H.R. 1410/S. 2670 attempt to re-write history by arguing 
that the Nation made some ``promise'' not to conduct gaming in the 
Phoenix area, in fact, as revealed in the litigation, the Gila River 
and Salt River tribes and the State of Arizona: (1) were well aware of 
the Nation's right to conduct gaming on its settlement lands long prior 
to the signing of the 2003 gaming compacts, and (2) tried but failed to 
insert language into the compacts to prevent tribes from gaming on 
after-acquired lands (such as replacement lands acquired under a land 
claim settlement).
    In the end, the tribes and the State explicitly agreed in the 
tribal-state compacts they each signed that gaming on lands acquired in 
accordance with IGRA's equal footing exceptions would be permitted. A 
federal court has confirmed that ``the Nation's construction of a 
casino on the Glendale-area land will not violate the Compact'' and 
that ``gaming on that land is expressly permitted'' by IGRA. Arizona v. 
Tohono O'odham Nation, 944 F.Supp.2d at 753-54 (D. Ariz. 2013). H.R. 
1410/S. 2670 would re-write the tribal-state compact to provide these 
wealthy tribes a monopoly that they tried and failed to obtain in good 
faith negotiations--and break the promises made to the Nation.
1992-2001: The Nation informs Arizona, Gila River, and Salt River of 
        its Rights under the Gila Bend Act
    Evidence presented in court showed that the Nation's opponents were 
repeatedly made aware of the Nation's rights under the 1986 Gila Bend 
Act. During a recorded July 15, 1992 meeting, the Nation explicitly 
informed gaming negotiators for the State of its position that land 
acquired under the 1986 Gila Bend Act would be eligible for gaming. 
Arizona et al. v. Tohono O'odham Nation, CV11-0296-PHX-DGC, 7/15/92 
Tohono/Arizona Reps. Mtg. Tr. 3. Later, in the mid-1990s, a 
representative of the Nation informed the former president of the Salt 
River tribe (and key 2002 compact negotiator) of the Nation's right to 
conduct gaming on land acquired under the 1986 Gila Bend Act. Id., 
Antone Dep. at 76 (5/24/12). Finally, in 2001, one of the Gila River 
tribe's compact negotiators was informed about the Nation's land 
acquisition rights under the Gila Bend Act. Id., Supp. Resp. to Pl. 
First Set of Non-Unif. Interrog. (5/14/12).
2001-2002: Arizona and Gila River Try to Introduce Compact Language to 
        Prevent Gaming on After- Acquired Lands During Compact 
        Negotiations; the Tribes 
        Collectively Reject These Attempts
    What is more, as the district court noted, the Nation presented 
evidence that the State and Gila River ``proposed during negotiations 
that gaming on after-acquired lands be prohibited'' but that this 
proposal ``was rejected and not included in the Compact.'' Arizona v. 
Tohono O'odham Nation, 944 F.Supp.2d at 767. During later compact 
negotiations, ``some State legislators attempted to . exclude all 
gaming on after-acquired lands precisely to avoid gaming on 
noncontiguous reservation land such as the [Nation's] Glendale-area 
land.'' Id. These efforts also were rejected. Id.
2002: Gila River, Salt River, and Arizona Agree to Language in the 
        Compact that Expressly Permits Gaming on After-Acquired Lands
    In the end, the State, Gila River and Salt River explicitly agreed 
in the final tribal-state compact that gaming would be permitted on any 
Indian lands that meet the requirements of IGRA, including on ``after-
acquired lands'' acquired under a land claim settlement. See Compact at 
Section 3(j)(1), Proposition 202, A.R.S.  5-601.02(I)(6)(b)(iii). The 
federal court found that the tribes ``did not reach . . . an agreement 
`` that would ``prohibit the Nation from building a new casino in the 
Phoenix area.'' Arizona v. Tohono O'odham Nation, 944 F.Supp.2d at 753 
(emphasis added).
2007: Gila River Proposes a Compact Amendment to Prevent Gaming on 
        After-
        Acquired Lands in Maricopa, Pima, and Pinal Counties
    In 2007, following numerous failed attempts to protect its gaming 
monopoly, Gila River proposed (unsuccessfully) a compact amendment to 
``preclude gaming on after-acquired lands.'' Lunn Dep. 72. Gila River's 
proposal was limited to after-acquired lands in Maricopa, Pima, and 
Pinal Counties--the same three counties in which the Nation is 
permitted to acquire settlement lands in trust under the Gila Bend Act.
2009-2012: Gila River and Salt River Build Three New Casinos in the 
        Phoenix 
        Metropolitan Area
    Gila River and Salt River now claim that the tribes all promised 
that there would be ``no new casinos in Phoenix.'' In support of this 
argument Gila River and Salt River point to statements in 2002 by 
Arizona's then-governor: ``Proposition 202 ensures that no new casinos 
will be built in the Phoenix metropolitan area . . . for at least 23 
years.'' But Gila River and Salt River themselves have gone on to build 
three new casinos in the Phoenix metropolitan area. See, e.g., GRIC 
opens New Wild Horse Pass Hotel and Casino, Gila River Indian News 
(November 2009, available at http://www.gilariver.org/index.php/news/
849-gric-opens-new-wild-horse-pass-hotel-and-casino); (``On Fri, Oct. 
30, the Gila River Indian Community opened the doors to its new 100,00 
square foot Wild Horse Pass Casino''), New Vee Quiva Casino & Hotel 
ground breaking, Gila River Indian News (July 2012, available at http:/
/www.gilariver.org/index.php/july-2012-grin/2919-new-vee-quivacasino-a-
hotel-ground-breaking) (``The official ground breaking ceremony for the 
new Vee Quiva Casino & Hotel commenced on June 7, 2012 in Komatke, 
District 6 . . . 'Quite frankly I'm very impressed with the 
contemporary and cultural elements that will be added into this new 
casino-hotel,' Mendoza said''); Casinos' quarterly revenue fall eases, 
Arizona Republic (May 5, 2010, available at http://www.azcentral.com/
business/news/articles/20100505biz-casinos0505.html) (`` . . . the Gila 
and the Salt River Pima-Maricopa Indian communities . . . each invested 
hundreds of millions of dollars to open new casino-hotels amid the 
recession'')
2012: Multiple Witnesses (including those representing Gila River, Salt 
        River, and the State) Contradict the ``No New Casinos in 
        Phoenix'' Argument
    Like its sister tribes Gila River and Salt River, the Nation 
explicitly stated at the outset of negotiations that it did not wish to 
be bound by the statements of other tribal leaders. In light of this 
fact, the court held that it ``cannot conclude'' that that the Nation 
shared the views about gaming in Phoenix that other tribal 
organizations may have had. Arizona v. Tohono O'odham Nation, 944 F. 
Supp.2d at 766. And as explained by witnesses not aligned with either 
side of the litigation, the concept of ``no new casinos in Phoenix'' 
simply was never a theme or a deal point in the negotiations over the 
gaming compacts and Proposition 202:

   W.M. Smith Dep. 32 (Cocopah Tribe representative) ``Q. Do 
        you recall the concept of no new casinos in Phoenix ever being 
        broached in the negotiations? A. No.''

   Clapham Dep. 35-36 (Navajo Nation representative) ``Q. There 
        was not a single event, to the best of your recollection, that 
        could constitute a request for a tribe to waive its rights to 
        build a casino in the Phoenix area? A. There were discussions 
        about reducing the number of authorized facilities in exchange 
        for transfer of machine rights. But I don't remember any 
        specific request to deal with not putting another facility in 
        Phoenix.''.

   Ochoa Dep. 25 (Yavapai Prescott Tribe representative) ``Q. 
        So until this lawsuit came about, though, you had never heard 
        anybody talking about how Prop 202 would permit no new casinos 
        in the Phoenix area and only one in Tucson? A. Absolutely not. 
        No. It wasn't discussed at the meetings I attended.''

    Even Gila River, Salt River, and the State's own witnesses in 
litigation confirmed that the Nation never promised not to conduct 
gaming in the Phoenix area. See, e.g.:

   Walker Dep. 43 (State representative) ``Q. [Y]ou can't point 
        to any member of the Nation or any of their lobbyists or 
        lawyers who have ever specifically stated that there would be 
        no new casinos in the Phoenix area. Correct? A. Correct.''

   Severns Dep. 53-54 (State representative) ``I have no 
        recollection of a conversation in which [the Nation] mentioned 
        they would or would not build [a casino in Phoenix].''

   Lewis Dep. 44 (Gila River representative) ``Q. [D]uring the 
        negotiations, no one from the Tohono O'odham Nation ever stated 
        that the Nation would never game in the Phoenix area?...A. I 
        don't recall any, right.''

   Makil Dep. 95 (Salt River representative) ``Q. [Y]ou don't 
        recall any specific representative of the Nation affirmatively 
        stating that the Tohono O'odham would not build casinos in the 
        Phoenix area. Correct? A. No one ever said anything to me.''

   Landry Dep. 43 (Salt River representative) ``Q. During the 
        negotiations, no one from the Tohono O'odham ever specifically 
        stated that the tribe would never game in the Phoenix area, did 
        they? A. That's correct.''

   LaSarte Dep. 62-63 (Arizona Indian Gaming Association 
        representative) ``Q. And at no time did the State ever ask the 
        Tohono O'odham to agree never to game in the Phoenix 
        metropolitan area. Correct? . . . [A.] I do not recall any 
        discussions for or against the possibility of Tohono O'odham 
        gaming in the Phoenix metropolitan market[.]''

2012-2013: The Federal Court Rejects Gila River and Salt River's 
        ``Promise'' 
        Argument on the Merits
    The Nation's opponents have incorrectly claimed that the courts did 
not reach the merits of the ``promise'' arguments. This is not true. 
The district court soundly rejected that argument--and not simply on 
sovereign immunity grounds as the proponents of this legislation claim. 
In fact, as the oral argument colloquy involving Gila River's lawyer 
(Mr. Tuite) reveals, the court found this argument totally 
unconvincing:

         MR. TUITE: The plaintiffs have alleged sufficient facts to 
        show that the parties understood and endorsed the concept that 
        a fundamental premise of the compact was the principle that the 
        agreement would not result in new gaming facilities being 
        constructed in the Phoenix metropolitan area. The Nation now 
        claims, however, that the compact permits exactly what is 
        alleged it cannot do.

         THE COURT: Mr. Tuite, if that was a fundamental premise of 
        this compact, it would have been a real easy thing to say that 
        in the compact, right?

         MR. TUITE: Well, a lot of things in retrospect could be easy 
        things to say. Yes, Your Honor, that's true. But we think there 
        are, based on the allegations we made, good reasons to think 
        that the parties didn't feel it necessary to spell that out.

         THE COURT: Well, that's a pretty surprising idea, in my mind, 
        for parties who are represented by lawyers and who are 
        negotiating a contract that will become a compact that has an 
        integration clause that says no other understandings or 
        agreements not in writing will be enforceable.

         For somebody with that kind of a clause going into the compact 
        saying this other understanding is so fundamental that we don't 
        to have say it just didn't make any sense to me.

        Arizona v. Tohono O'odham Nation, Tr. Mot. to Dismiss at 
        28:15--29:12 (emphasis added).

    Most devastating to Gila River 's and Salt River's arguments was 
that section 25 of the very Compact that each Arizona tribe signed with 
the State includes an integration clause which explicitly provides that 
``This Compact contains the entire agreement of the parties with 
respect to the matters covered by this Compact and no other statement, 
agreement, or promise made by any party, officer, or agent of any party 
shall be valid or binding.'' (emphasis added). In other words, the 
parties agreed in the compact that the words of the compact would trump 
any supposed ``side-bar'' promises and that such promises would have no 
effect. Arizona v. Tohono O'odham Nation, 944 F. Supp.2d . at 770-74. 
As explained by the court, because ``[t]he fully integrated compact 
discharges any unwritten understandings,'' id. at 774, plaintiffs' 
claims seeking to enforce a promise that is not in the compact were 
foreclosed on their merits. There is no basis whatsoever for Congress 
to overturn the district court's carefully considered conclusions at 
the behest of the losing litigants.
Concerns About Expansion of Gaming
    During this Committee's July 23 Oversight Hearing on Indian Gaming, 
concerns were expressed about the potential of another Tohono O'odham 
casino being developed in the East Valley. These arguments are based on 
the worst kind of fear mongering, and reveal that tribes pushing for 
enactment of H.R. 1410 and S. 2670 have run out of credible legal and 
policy arguments. In fact, the Nation has no other eligible land in the 
Phoenix Valley, and it would be a practical impossibility to acquire 
such land and undertake such an effort before our existing tribal-
gaming compact expires. What is more, we have repeatedly stated, again 
and again, that the Nation has no such plans. Nevertheless, should even 
stronger confirmation be needed to dispel these arguments, the Nation 
stands ready to work to address these concerns.
Conclusion
    Chairman Tester, Vice Chairman Barrasso, and honorable members of 
this Committee, thank you for giving the Nation the opportunity to 
testify at this legislative hearing. It is our great hope that the 
United States Senate will reject a return to the era of treaty-
breaking, and that you will help Congress preserve and protect the 
commitments the United States made to the Tohono O'odham Nation when it 
enacted the Gila Bend Indian Reservation Lands Replacement Act. By so 
doing, the Senate will also ensure that the integrity of the tribal-
state gaming compacting process, as it has been set into law under the 
Indian Gaming Regulatory Act, will not be undermined by private special 
interest bills such as H.R. 1410 and S. 2670. The Nation respectfully, 
and urgently, asks that you help ensure these bills do not become law.

                         Supplemental Testimony

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    
    The State of the Tohono O'odham Nation: A Review of Socioeconomic 
Conditions and Change, by the Taylor Policy Group, attachment has been 
retained in the Committee files.

    The Chairman. Thank you, Chairman Norris, for your 
testimony. Thank you all for your testimony. Senator McCain?
    Senator McCain. Thank you, Mr. Chairman.
    Chairman Norris, would you like to, for the record, supply 
the amount of money or revenue that your casinos have gained 
for the tribe on an annual basis?
    Mr. Norris. Mr. Chairman, Senator McCain, I will be happy 
to give that some consideration, but I will not do that without 
the express authorization of my legislative counsel.
    Senator McCain. So you won't tell us how impoverished you 
are. I got it.
    I will provide for the record, Mr. Chairman, the hearings 
that Senator Inouye and I had, including that where the 
attorneys generals, especially, of States that came and 
testified before our Committee, one of their great concerns was 
what would happen is exactly happening now. That was one of the 
reasons why we had great difficulty getting the support of 
governors and attorneys generals, because they said if we don't 
look out, we are going to have Indian gaming operations in the 
middle of our towns and cities. So I would be glad to provide 
the record of the hearings and the conclusions and the 
statements that Senator Inouye and I made at the time of the 
passage of the Indian Gaming Regulatory Act, which clearly was 
designed to prevent a non-contiguous, middle of a metropolitan 
area Indian gaming operation, for which the people have, maybe 
their elected representatives have, maybe some like Mr. 
Sherwood have changed their mind over time. But they have not 
been able to make their will known as far as a very significant 
impact not only in Glendale but in the entire West Side.
    So Mr. Sherwood, out of curiosity, I think you used to be 
very much opposed and even wrote articles in opposition to 
this. What changed your mind?
    Mr. Sherwood. Thank you for the question, Mr. Chair and 
Senator McCain. When I campaigned, I had campaigned against 
this proposed, based on the information I had. And I had read 
quite a bit of information on it. The thing that was 
distressing to me, though, was that in the very beginning there 
was a half hour conversation, when the city first found out 
about this in April 2009. That was the only conversation that 
the previous administration had.
    I was always quite upset by the fact that we didn't have 
the dialogue, we weren't doing very good in the courts. So when 
the new council got seated in January 2013 and we took care of 
the hockey arena situation, we turned our attention to the 
casino issue, which again had been laboring for five years, and 
started having that informal dialogue, and learned quite a bit 
more about the project from the fact this could benefit us in 
many more ways than what the gaming compact even called out 
for.
    So those informal discussions led into formal fact-finding 
in the November time frame, which led to negotiations in March. 
And having gone through that and having voted on this a couple 
of months ago to approve the project and to unequivocally set 
ourselves against this legislation, and the benefits, certainly 
after talking to other developers, we have had several 
developers come to us since this casino project was announced, 
wanting to develop on land in Glendale city proper.
    Senator McCain. Well, thank you. Chairman Norris, I have 
before me information that, I am not sure where it came from, 
but it alleges that your annual revenue from gaming is 
$68,200,000.00. Is that in the ballpark?
    Mr. Norris. Mr. Chairman, Senator McCain, as I stated 
before, without the authorization of my legislative counsel, I 
am not at this point able to disclose, agree or disagree with 
your information.
    Senator McCain. So you refuse to tell this Committee, who 
is expected to support your effort to establish a casino, that 
you won't even tell me whether this is a correct or incorrect 
number, $68,200,000?
    Mr. Norris. Mr. Chairman, Senator McCain, the courts have 
already made that determination on whether or not the Nation is 
within its legal right to be able to establish. And our current 
compact also authorizes it as well.
    Senator McCain. That is not in response to the question I 
asked, Mr. Chairman. You refuse to give, to authenticate or 
disagree with roughly $68,200,000.00 in revenue for your 
Nation? Is that correct, you do not wish to give that 
information? Agree or disagree?
    Mr. Norris. Mr. Chairman, Senator McCain, I am not agreeing 
or disagreeing. What I am saying is----
    Senator McCain. Actually what you have done is refuse to 
answer questions before this Committee. I am not sure why you 
came.
    Mr. Mendoza, is there a concern, Chairman Mendoza, 
President Mendoza, is there a concern that there may be other 
loopholes such as this exploited in using this precedent that 
other casinos would be established in the valley?
    Mr. Mendoza. Mr. Chairman, Senator McCain, thank you for 
that question. I have been hearing about this particular bill 
and if it would create that precedent. In my mind, no. The Act 
has been very consistent with congressional precedents. If you 
will allow me, I will allow my attorney here to offer some 
specifics. Ms. Binney?
    Ms. Binney. Thank you, Senator McCain. The concern that you 
have is a legitimate concern, in that Tohono O'odham, if they 
are able to build this Glendale casino, can actually shut down 
their other three casinos in the Tucson area and move them up 
to the Phoenix area. Basically using the same legal theory. 
That is why the East Valley mayors are so concerned, because 
they thing the same thing that is happening in Glendale can 
happen in the East Valley.
    I think it was Congressman Gosar last time who brought a 
map that showed 200 county islands in other parts of the 
Phoenix Valley where the same thing can happen.
    But more importantly, in the negotiations and during 
litigation, handwritten notes have come out from Tohono 
O'odham's representatives, basically indicating that they would 
do such a thing. They are aware that they have that legal 
ability, if they are successful in Glendale, to shut down the 
other three casinos and move them up to the Phoenix area. That 
is one of the biggest concerns of the East Valley mayors.
    Senator McCain. Well, Mayor Weiers, you find yourself in 
the minority here. Maybe you can tell us how that happened, 
going from the majority to the minority on this issue. I am 
sure it didn't have anything to do with a $26 million 
commitment over several years.
    Mr. Weiers. Mr. Chairman, Senator McCain, I don't actually 
know how I found myself in that position. I have been on a one 
mind and one thought ever since this issue came up, when I was 
in State legislature. I know in our campaign that people had 
ran their campaigns stating certain views and certain beliefs. 
I guess I never really expected people to change their opinion. 
But I don't know exactly how we found ourselves, the same 
facts, the same truths that were there two years ago are the 
same facts and truths today. Nothing has changed. People's 
opinions have changed and how they have changed their mind 
because of those facts and truths, I don't know.
    And sir, I don't know if that is really the question that 
maybe I should be asked, but I'm not exactly sure how we came 
to that position.
    Senator McCain. Thank you.
    Mr. Chairman, it bears repeating to all the witnesses in 
response to some of the statements that the Constitution calls 
for the Congress to have a special responsibility as far as 
Native Americans are concerned. It is written in the 
Constitution. So although some may view this hearing and our 
action as being unwanted interference, it is a specific 
Constitutional responsibility of the Congress of the United 
States.
    So Mr. Chairman, this is a very busy week. We will be 
leaving tomorrow for quite a while. And you were kind enough to 
hold this hearing for me, and I take that as a very special 
favor that you granted me. I want to express openly and 
repeatedly my appreciation for your doing this. I thank you, 
Mr. Chairman.
    The Chairman. Thank you for those kind words, Senator 
McCain. We always appreciate your commitment to the Senate and 
to this Committee. And we thank you for your leadership on a 
number of issues, including this one.
    I have a few questions here, I will start with Governor 
Mendoza. Governor, when it comes to tribal gaming in Arizona 
being successful, could you talk about the kind of success that 
Gila River has enjoyed because of gaming?
    Mr. Mendoza. Thank you for that question, Senator. Gila 
River does enjoy the benefits from our casinos. We have been 
able to fully fund for our students to go to college, any 
college in the world. We have been able to provide funding for 
our public safety, police, fire, our emergency management 
program. We are able to provide programs for our elders, our 
youth, housing, you name it. We have been able to do a lot for 
our community. Again, we are very thankful and blessed.
    The Chairman. I commend you on your commitment to your 
people. Education is one of my priorities.
    You reference, when it comes to expansion of gaming, you 
reference a commitment made by the tribes in 2002 that there 
would be no additional gaming facilities in the Phoenix area. 
In the current gaming compacts, there is a specific limitation 
on the Tohono O'odham from building a fourth facility in the 
Tucson area.
    If the parties thought enough to put a Tucson limitation 
expressly in the compact, why wouldn't the State include such a 
limitation around Phoenix? Any insight into that?
    Mr. Mendoza. Thank you, Senator Tester. Senator Tester, I 
am not an attorney. I am going to allow my attorney to answer 
that for me.
    The Chairman. Well, I think that is a good point that you 
are not an attorney. I am not one, either. So Allison, since 
you are, have at it.
    Ms. Binney. I think there is a little bit of confusion. It 
depends, so in Arizona, it is different than in most other 
States. Most of those State, the governors can just go and 
negotiate a compact directly with the tribes, enter into it. In 
Arizona, that is not the case. The government had to get 
authority from the voters to enter into compacts. So the voters 
voted on a model compact. I actually have the proposition that 
the voters had there.
    So Tohono O'odham does say, like, nowhere in the model 
compact or the compact does it say, Tohono O'odham can't go 
into Phoenix. One, there was no need to say that in the 
compact, because no one ever thought that would happen. But 
two, in all the negotiations, which are the key part of what 
this bill is trying to address, Tohono O'odham specifically 
said, their fourth casino would be in the Tucson area or in a 
rural area. They never once indicated that they would somehow 
go 100 miles up to the Phoenix area.
    But I will say the proposition that has the model compact 
that the voters actually saw when they voted to give the 
governor authority, there is a chart in there. And in the chart 
it shows the number of casinos that the tribes in Arizona were 
authorized to build under the old compacts, and the number of 
casinos that the tribes would be authorized to build under the 
new compact, the model compact that the voters were voting on.
    In the Phoenix area tribes, all are shown as giving up a 
right to an additional facility that they had under the old 
compact. Tohono O'odham, because they are not a Phoenix area 
tribe, kept the same number of casinos, the right to build the 
same number of casinos. So Gila River is shown as giving up an 
additional casino, right to an additional casino. Salt River 
gave up a right to an additional casino. Ak-Chin gave up a 
right to an additional casino. Fort McDowell gave up the right 
to an additional casino and so did Pascua Yaqui. Tohono O'odham 
didn't have to give up the right to an additional casino, 
because they weren't in the Phoenix area.
    So in our view, it is in the compact. Why else would these 
charts be in here showing that the Phoenix tribes gave up 
rights to additional casinos and Tohono O'odham didn't, if it 
wasn't intended that the whole goal of the compact was to limit 
the number of facilities in the Phoenix area?
    The Chairman. Okay. If you don't mind, Allison, I want to 
ask you another question, since you are an attorney, since you 
know the law. And I say this in the most friendly way. When I 
talked to Chairman Norris, and I think it was referenced in one 
of your testimonies, maybe it might have been Mr. Washburn's 
testimony, about breaking ground on a facility already. So 
ground has been broken.
    If we were to pass this bill, would there be a takings 
issue?
    Ms. Binney. No. And I thought it was interesting that 
Assistant Secretary Washburn didn't address this issue at all. 
Because he was aware of it. And Senator McCain asked him about 
it last time.
    The fundamental reason why is because this bill just 
provides a temporary restriction on gaming activities on 
certain lands. That is what IGRA does. The Indian Gaming 
Regulatory Act was passed to restrict gaming on tribal lands. 
So if this bill is a takings, then so is the Indian Gaming 
Regulatory Act. And that has been around 25 years and has been 
upheld again and again and again.
    The Chairman. So in one point, you are talking about policy 
that prevents gaming activities that happen with IGRA. This is 
an actual physical construction, you don't see that there is 
any difference there. And I ask this because I don't know.
    Ms. Binney. Yes, and we actually when it came up in the 
last hearing, Senator McCain asked it. We actually went and did 
a thorough analysis. Because I will say, last Congress there 
were some legitimate concerns raised about Tohono O'odham and 
we addressed them in this new bill. But we looked at it, and 
the other reason why it is not a takings is because Congress 
does these types of bills fairly frequently, actually, 
restricting gaming on lands. And they can build a resort. They 
can build a new sports stadium. They can do economic 
activities.
    The Chairman. That is fine, thank you. Thanks, Allison.
    Chairman Norris, a similar question to what I just asked 
Governor Mendoza. You have gaming facilities, can you discuss 
what benefits you have gotten from these gaming facilities and, 
while you are in that vein, could you also discuss unmet needs 
that are still out there by your tribe?
    Mr. Norris. Mr. Chairman, I too am not an attorney. I am 
the elected chairman of my nation, and I have an obligation to 
speak for my people.
    The Chairman. Yes.
    Mr. Norris. So I will do so. There are still third world 
conditions that exist in my tribal community, and many tribal 
communities nationwide. The Nation has had an enormous amount 
of benefit in comparison to where we were prior to gaming. We 
have been able to construct different facilities that were only 
dream facilities that we were needing within our communities, 
to be able to provide the necessary services. We have been able 
to create a government of employees that are able to provide 
the necessary services that many of our Nation's members 
require. We have been able to provide scholarships to our 
members.
    Prior to gaming, we had probably less than 300 members of 
our Nation that acquired bachelor's, associate's, master's and 
doctorate degrees and some law degrees. Today we have graduated 
more Tohono O'odham with those types of degrees, this many 
years later. My council continues to allocate some $5 million 
toward scholarship programs for our Nation.
    So we have had an enormous amount of benefit from the 
results of gaming. But we still have those third world 
conditions that continue to exist.
    As far as unmet needs, Mr. Chairman, we know today that we 
have 500 families that are homeless on the Nation. We know 
today that there are many people within our communities that do 
need housing. We know today that much of the roads that are 
within our tribal communities that are being used and mis-used 
by the U.S. Border Patrol because of the influx of border 
agents on our Nation, really do a wear and tear on our roads. 
And they are primarily BIA-IRR roads. So there is a need for us 
to work hand in hand with the Department of Interior, Bureau of 
Indian Affairs, to try and address the roads conditions that 
are so needing to be addressed, to be able to deliver the 
services, to be able to enter and exit our tribal communities 
nationwide.
    We have a reservation that is 2.8 million acres square in 
size. We have some 80 villages within that geographical area. 
The reservation is vast. The villages are remote. We have homes 
that do not have running water. We have homes that do not have 
electricity. So there is a serious amount of unmet need in my 
tribal community.
    The Chairman. Thank you, Chairman.
    Mayor Weiers, you are a former State legislator, you worked 
in city government as mayor, and I think you understand the 
actual text of the laws and contracts and the weight that that 
carries with those contracts and that text. In this case, there 
was a specific limitation, correct me if I am wrong, on Tohono 
O'odham developments around Tucson but not Phoenix. With that 
said, if this limitation on gaming in the Phoenix area was 
important, why was it not included in the current contract or 
Prop 202?
    Mr. Weiers. Chairman Tester, all I can tell you is the 
knowledge that I have of talking with one of the authors, 
Senator McCain. He had told me point blank that there was never 
ever any intention in their mind that this would ever be an 
issue. And I don't believe, quite honestly, that the average 
person, the non-attorney people, would ever have thought 
something like this. I guess that is why we have attorneys, to 
sit around and think of ways to get around stuff.
    But I don't believe anybody ever believed that this was 
ever going to be an issue. And it is an issue, and quite 
honestly, all this bill is trying to do is just, let's do what 
everybody said and thought we were going to do, and then when 
that compact is over, we will renegotiate. Chances are that we 
will probably end up with more casinos in the valley, almost 
certainly.
    The Chairman. Okay, thanks, Mayor.
    Councilman Sherwood, your testimony discusses the impacts 
that the agreement with the Tohono O'odham would have on the 
city of Glendale, positive impacts. Could you talk about those 
benefits of this development? And while you are on that, if 
there is a down side that comes to mind, could you talk about 
that, too?
    Mr. Sherwood. Thank you, Chair. Right off the bat, I can't 
see of any down side in the negotiations and the settlement 
agreement that we concluded with the Tohono O'odham in August. 
They are covering existing infrastructure, new infrastructure, 
water. It is not costing the city a penny. How often do you get 
a development where you don't have to give in to anything?
    In terms of the development, we were hurt pretty hard with 
the downturn with our sports and entertainment. There were 
eight funded projects that were to occur south of the 
University of Phoenix stadium where the Arizona Cardinals play. 
One of them was Mr. Bidwell's CB101 project, before he started 
building. Those either went into litigation afterwards or the 
developers pulled back. Those are slowly coming back, but not 
near the pace that was expected.
    So our sports and entertainment area, which has two 
professional sports teams, a large entertainment area along 
with some retail, was hurt vastly by that. So when we have the 
mega events, like when we have the Super Bowl next February, we 
don't have anything to keep people in the area, so they go off 
into Scottsdale and Phoenix.
    A project like this resort will entice other development. 
In fact, within weeks of us signing that agreement, we had two 
major developers, one that had done a large scale project in 
Phoenix, come through and they were only interested in us now 
because of this project. They were looking at land within the 
city of Glendale to develop that would be real close to the 
sports and entertainment area.
    So yes, we are looking at a lot of development activity 
that will directly benefit our city coffers. And then again in 
the deal that was referenced earlier about the $26 million or 
so that we get directly into the general fund from the Tohono 
O'odham. In fact, we have already received a check for 
$500,000, 10 days after the agreement was signed. That helps a 
city that has struggled, as has been widely reported, because 
of our past deals with some of the sporting facilities that we 
have. It has sorely helped our community.
    The Chairman. Okay. You talked about jobs. How many jobs?
    Mr. Sherwood. Jobs, in terms of the operations, you are 
going to see 3,000 jobs, 1,500 of them probably indirect, 1,500 
direct in terms of construction jobs. Right now it is scheduled 
for three phases, the casino and then the attached resort and 
probably a year later, another resort, based on how things are 
moving along. So you are talking thousands of construction jobs 
over this project that is going to take place over the next 
four years. But in terms of actual jobs at the West Valley, I 
would say about 3,000.

    The Chairman. Once again, I want to thank all of you for 
making the trek to Washington, D.C. I know it is not easy and 
some of you have made it twice. I thank you for that. And I 
mean that. This is obviously an emotional issue and it is an 
important issue.
    Note that the hearing will remain open for two weeks, and I 
encourage all stakeholders to submit written statements for the 
record. I want to say that again, this hearing record will 
remain open for two weeks. And if you are a stakeholder in this 
issue, I would encourage you to write written statements for 
the record.
    With that, once again, thank you all. This hearing is 
adjourned.
    [Whereupon, at 3:22 p.m., the hearing was adjourned.]
                            A P P E N D I X

    Prepared Statement of Hon. John Insalaco, Mayor, City of Apache 
                           Junction, Arizona
    Chairman Tester, Vice Chairman Barrasso, Members of the Committee, 
thank you for the opportunity to submit my testimony on S. 2670, the 
Keep the Promise Act. My name is John Insalaco and I am the mayor of 
the City of Apache Junction, Arizona, which is in the Phoenix 
metropolitan area.
    First and foremost I want to thank our Senators, Senators McCain 
and Flake, for hearing our concerns and introducing this bill. And I 
thank you, Mr. Chairman and members of this Committee, for acting 
promptly to further examine this issue.
    While I have my own personal reasons for supporting this 
legislation, other Phoenix area mayors and I are unified in a singular 
concern: until Congress affirmatively acts on this legislation, the 
Tohono O'odham Nation (TON) could open a casino near any of our cities 
within any of the more than 200 county islands within Pima, Pinal and 
Maricopa Counties.
    Just like in Glendale, this could happen without our consent, 
without our input, and even without our knowledge. Without 
Congressional action, a single Washington, DC bureaucrat's decision 
threatens to change our communities forever and our local governments 
have lost control in fending off the unwanted proliferation of gaming 
in our neighborhoods. That outcome is wholly unacceptable to our 
constituents, which is why we collectively ask that this committee 
quickly approve this important bill.
    We represent communities that support tribal governments and the 
sovereign rights of our Nation's first peoples. While we may not see 
eye to eye on all issues, we have a strong track record of 
collaborative efforts that have fostered successful Government-to-
Government relationships. Much of this collaboration is a direct result 
of the current compacts that promotes tribal governments and local 
governments to work together to address common issues. We appreciate 
and value the relationships we have developed with our neighbors, and 
believe this sentiment is reciprocated by many of the tribal 
governments throughout Arizona.
    That's why we were so surprised to learn of TON's actions. We could 
not believe that a government would surreptitiously acquire land for a 
new Phoenix area casino even while promising Arizona voters that there 
would be no new casinos in the region.
    Unfortunately the deception did not stop in Glendale. According to 
TON's attorneys, the tribe has the right to open even more casinos in 
the Phoenix metropolitan area.
    Like Glendale, many of the 200 county islands in Pima, Pinal and 
Maricopa counties are unfit for the development of major gambling 
establishments. These parcels are in and around large residential 
neighborhoods, near schools, and near religious institutions. In other 
words, the county islands are in precisely the type of neighborhoods 
that Phoenix and Arizona voters decided were not suited for further 
casino development.
    The development of new casinos in the Phoenix metropolitan area--
whether in Glendale or in any of the other county islands in the 
metropolitan area--represents a fatal breach of trust between the 
tribal governments who advocated for Arizona Proposition 202 and the 
people of our state. When we heard the promise of ``no new casinos in 
the Phoenix area,'' we trusted our friends and neighbors and took them 
at their word. And in exchange for that promise, the voters of our 
state awarded these tribes with the exclusive right to run casinos in 
Arizona.
    Now the actions of one tribe have put this trust, and our 
longstanding working relationship with Arizona's tribal nations, in 
jeopardy.
    TON's decision to knowingly and willingly deceive voters forces us 
and many of our constituents to rethink the promises that we have made 
to tribes as well. While we do not have the authority to nullify the 
compact, the Proposition 202 compact expires in 2027; and we now have 
to think long and hard about whether we should renew that agreement. It 
would be a shame if the cavalier actions of one tribe upended a 
successful system that has benefitted all tribes in our state.
    Even more troubling was the recent testimony of Assistant-Secretary 
of Indian Affairs (AS-IA), Kevin Washburn, who clearly advocated on 
behalf of TON without making any mention of, or demonstrating any 
consideration for, the impact that the TON's potential casino would 
have on the Tribal-State compact and our communities.
    This Washington, D.C. bureaucrat presumed to know more about the 
voters' intentions than the voters themselves by claiming that the 
Phoenix gaming market could afford to have more casinos, even though 
voters clearly wanted a cap on the number of casinos in the area when 
they approved Proposition 202. AS-IA Washburn casually dismissed voters 
expectations by stating that the parties ``eliminated reliance on any 
statements or promises made during negotiations, unless they were 
included within the four corners of the compact,'' while ignoring that 
all urban area tribes except for TON gave up rights to additional 
casinos to meet State and voter expectations and TON retained one 
additional casino by assuring State and tribal negotiating parties that 
it would be located in the Tucson area or in rural parts of its 
reservation.
    AS-IA Washburn did not discuss or consider any of the fraudulent 
actions and promises that the TON made to State negotiating parties, 
the general public and other tribes during the compact negotiations and 
the tribes' campaign to convince voters to approve Proposition 202, 
when all the while it never intended to live up to these promises. 
Further, how AS-IA Washburn chose to interpret the Gila Bend Indian 
Reservation Lands Replacement Act has very direct consequences on our 
constituents and other Arizona tribes, but his testimony showed no 
impartiality or concern for non-TON interests, including the interests 
of other Arizona tribes. AS-IA Washburn refuses to act as an impartial 
and responsible agency decision-maker, instead leveraging his official 
position to serve as TON's personal advocate and the lives of our 
communities are now threatened by this agency action.
    Despite years of trying to convince TON to act responsibly and 
attempting to reason with the Administration, it has become clear that 
Congressional action is now Arizona citizens' only recourse to preserve 
our balanced and mutually beneficial system. And the legislation under 
consideration today does just that.
    S. 2670, the Keep the Promises Act, is a narrowly tailored bill 
that preserves the agreement that was made with voters in 2002 by 
simply prohibiting new casinos from being constructed in the Phoenix 
area until 2027, when the current compact expires.
    Equally as important is what the bill does not do. The Keep the 
Promises Act does not prohibit TON from taking land into trust. It does 
not impact the tribe's right to acquire land under the Gila Bend Act. 
And it does not prohibit the tribe from conducting gaming on newly 
acquired land after 2027. AS-IA Washburn falsely and passive 
aggressively accused the ``promise'' of S. 2670 as being illusory.
    In our eyes, this legislation is far from perfect because we would 
prefer that Indian reservations not be dropped within or city limits. 
But we believe the bill makes adequate concessions, while preserving 
the rights and agreements made by our constituents.
    We hope you too will see this as a fair, moderate piece of 
legislation, and ask that you move to quickly enact the bill.
    Thank you for the opportunity to submit our testimony today, and we 
look forward to working with you to ensure the bill is enacted during 
the 113th Congress.
                                 ______
                                 
 Prepared Statement of Hon. Adolfo F. Gaamez, Mayor, City of Tolleson, 
                                Arizona
    As the mayor of the City of Tolleson, Arizona, a community within 
close proximity to the Tohono O'odham Nation's West Valley Resort, I 
offer my adamant opposition to the S. 2670. My City was the first to 
unanimously pass a resolution in favor of the Nation's casino project. 
We have since been joined by the Cities of Glendale, Peoria, and 
Surprise.
    There is tremendous support for this project among my constituents 
as well as throughout the West Valley. The Nation's West Valley Resort 
represents a unique amenity for our region that will attract new 
visitors, new businesses, and create thousands of jobs--not just at the 
casino but across the West Valley.
    The proposed legislation, S. 2670, seeks to stymie major economic 
development thereby denying my constituents access to the greater 
prosperity. I urge you not to allow this harmful bill to go forward.
    As more than a dozen legal rulings have found, the Nation's project 
complies with all of the relevant federal laws and state compact, which 
is why the special interests opposed to this project have pushed this 
legislation, to make up for their defeats in court by rewriting the law 
in their favor. The arguments presented to the Committee by the 
Nation's opponents during the S. 2670 hearing have all been addressed 
and rejected throughout judicial proceedings that span over five years.
    The opposition continues to repeat these claims, but that doesn't 
make them any more accurate. The real intent of S. 2670 is to protect a 
few East Valley special interests at the expense of the West Valley's 
economic development.
    I trust that you and the Indian Affairs Committee will make the 
right decision, based on all the facts. Thank you for your time and 
consideration.
                                 ______
                                 
  Prepared Statement of Hon. Linda Kavanagh, Mayor, Town of Fountain 
                             Hills, Arizona
    Chairman Tester, Vice Chairman Barrasso, Members of the Committee, 
thank you for the opportunity to submit our testimony on S. 2670, the 
Keep the Promise Act. My name is Linda Kavanagh and I am the Mayor of 
the Town of Fountain Hills, Arizona.
    Like other elected leaders of the Phoenix metropolitan area, I am 
very concerned that the Tohono O'odham Nation (TON) could unilaterally 
open a casino on a county island located within our city limits.
    The county islands located near my community are precisely the type 
of neighborhoods that Phoenix and Arizona voters decided were not 
suited for further casino development. Without Congressional action, a 
rich gaming tribe and a single Washington, D.C. bureaucrat threaten to 
change our communities forever and strip us of our powers as local 
governments to fend off unwanted proliferation of gaming in our 
neighborhoods. Because that outcome is wholly unacceptable to our 
constituents, we collectively ask that this committee quickly approve 
the Keep the Promise Act.
    Further, in approving tribal gaming in and upholding Arizona 
tribes' right to have casinos in 2002 voters were promised that there 
were would not be any new casinos in the Phoenix area. All tribes 
except one have kept that promise. After TON's long kept secret came to 
light, we could not believe that a tribal government would secretly 
look for land for a new Phoenix area casino even while promising 
Arizona voters that there would be no new casinos in the region. 
Unfortunately this deception may not stop in Glendale. According to 
TON's attorneys, the tribe has the right to open even more casinos in 
the Phoenix metropolitan area. Now we must wonder if the tribe will 
purchase or has already purchased land in our communities. It is 
because of the actions of one tribe that our longstanding working 
relationship with Arizona's tribal nations is now in jeopardy.
    When we heard the promise of ``no new casinos in the Phoenix 
area,'' the voters of our state awarded tribes with the exclusive right 
to run casinos in Arizona. The current gaming compact will expire in 
2027 and because of one tribe's broken promise voters will have to 
think long and hard about whether we should renew tribal gaming, or 
whether to only allow tribes to operate casinos. In 2027, if not 
sooner, the central question to voters may be whether tribes should 
retain their exclusive right when one tribe cannot be trusted.
    Our concern for the future of Indian gaming in Arizona grew 
considerably after hearing the September 17 testimony of Assistant-
Secretary of Indian Affairs, Kevin Washburn. Mr. Washburn clearly 
advocated on behalf of TON without making any mention of how TON's 
casino threatens Arizona, including other Arizona tribes. Mr. Washburn 
seems to be in the business of rubber stamping Indian casinos, which 
will only encourages tribes to adopt a cynical approach to expand 
gaming in our state.
    Additionally, Mr. Washburn ignored discussion of the fraudulent 
actions and promises that the TON made to State negotiating parties, 
the general public and other tribes during the compact negotiations. 
Evidence of their fraudulent conduct was the tribes' campaign to 
convince voters to approve Proposition 202 on the heavily advertised 
premise of ``no new casinos in Phoenix'' when all the while it planned 
to purchase land in Glendale for the purpose of opening a casino.
    It is clear that Mr. Washburn has chosen a way to interpret the 
Gila Bend Indian Reservation Lands Replacement Act that has very direct 
consequences on our constituents and other Arizona tribes. His 
testimony shows that he has no impartiality or concern for non-TON 
interests, including the interests of Arizona residents and its tribes.
    Despite years of trying to convince TON to act responsibly and 
attempting to reason with the Administration, it has become clear that 
Congressional action is now Arizona citizens' only recourse to preserve 
our balanced and mutually beneficial system. S. 2670, the Keep the 
Promises Act, is a narrowly tailored bill that preserves the agreement 
that was made with voters in 2002 by simply prohibiting new casinos 
from being constructed in the Phoenix area until 2027, when the current 
compact expires. Equally as important is what the bill does not do. The 
Keep the Promises Act does not prohibit TON from taking land into 
trust. It does not impact the tribe's right to acquire land under the 
Gila Bend Act. And it does not prohibit the tribe from conducting 
gaming on newly acquired land after 2027.
    Although this legislation does not address the long term problem of 
off-reservation gaming in Arizona, it does ensure that tribes live up 
to the commitments and assurances they gave to voters during their 
campaign to get the exclusive right to have casinos in Arizona. We hope 
you will see this as a fair, moderate piece of legislation, and ask 
that you move to quickly enact the bill.
    Thank you for taking my testimony.
                                 ______
                                 
  Prepared Statement of Hon. Thomas Beauty, Chairman, Yavapai-Apache 
                                 Nation

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                                 ______
                                 
   Prepared Statement of Sherry J. Counts, Chairwoman, Hualapai Tribe
    I am Sherry Counts, Chairwoman of the Hualapai Tribe. On behalf of 
the Hualapai Tribe, I believe it is imperative to present this 
testimony to the Senate Committee on Indian Affairs following the 
Committee's September 17, 2014 hearing on S. 2670, ``Keep the Promise 
Act'' as introduced by Senators McCain and Flake. This issue is one 
that has the Hualapai people very concerned. It is often said that 
there is more than one side to every story. The Committee has only 
heard part of the story and before acting; the Hualapai would like the 
Committee to consider other aspects of what S. 2670 means to my people 
and why we ask Congress to pass this legislation. I thank the Senate 
Committee on Indian Affairs for the opportunity.
    The Hualapai Tribe is a federally recognized tribe located in rural 
northwestern Arizona. Our land runs along the Grand Canyon and the 
Colorado River between Kingman and Seligman, Arizona on historic Route 
66, very scenic territory. We have about 2,300 members with about 1,300 
residing within our reservation. Now we rely on tourism, ranching and 
arts and crafts to drive our local economy. Our closest ``city'' is 
Kingman, Arizona, located about 50 miles to the west of our primary 
community of Peach Springs, Arizona. This is where people go to 
purchase groceries, gas, and clothing. Many of our youth travel the 50 
miles to Kingman, one way and each school day, to attend high school.
    We do not operate a casino. Many years back, we did make an attempt 
to open a small gaming facility, but we were not successful. Our 
facility was forced to closed a very short time after we opened. In 
retrospect, our remote location as well as our proximity to the large 
Las Vegas gaming establishments make the operation of a successful 
gaming operation in our remote community unviable. However, the 
Hualapai Tribe has a fully executed gaming compact with the state of 
Arizona. We participate in gaming and receive gaming revenue through 
our Transfer Agreements. Gaming revenue provides the Hualapai Tribe 
with additional resources to pay for basic subsistence needs for our 
members. As a result, this issue is of critical importance to us. Our 
story presents another facet of the dispute relating to the Tohono 
O'odham Nation's proposed West Valley Resort. Our story is one that is 
often overlooked and perhaps misunderstood. Our story presents real 
facts and considerations of the potential impacts the proposed facility 
has on one tribe in rural Northwestern Arizona. As a result, we believe 
it is necessary, as a Tribe that potentially faces perhaps the biggest 
of repercussions if the West Valley Resort is opened, to provide our 
position and response on S. 2670 as well as to address some of the 
issues and arguments raised during the Committee's hearing on September 
17, 2014.
Arizona Gaming--Delicately Balanced and Intentionally Limited by Design
    Although the Hualapai Tribe does not operate a casino, we have a 
fully executed Tribal-State Gaming Compact with the state of Arizona. 
Our former Chairwoman, Louise Benson participated in the negotiations 
and discussions over the design of gaming in 1999 that ultimately ended 
up on the Arizona ballots as Proposition 202 in the election of 2002. 
The compacts included in Proposition 202 were the result of over two 
years of negotiations and are delicately balanced and intentionally 
limited gaming that benefits all tribes with at Tribal-State Gaming 
Compact as well as the citizens of Arizona. The balance has worked for 
many years and is often cited as the Indian gaming standard.
    Gaming in Arizona, by design is limited in size, scope and growth. 
These carefully engineered limits were discussed multiple times among 
the tribes, including the Tohono O'odham Nation and with the Governor's 
Office. Gaming in Arizona is limited as to the number of facilities, 
number of machines per tribe and per facility, limited as to the types 
of games, and limited with regard to wager amounts. Plans for 
responsible growth are also tied to changes in population so that 
growth would be responsible growth and the markets would not be 
saturated. To get to this point, every tribe had to be willing to give 
and make sacrifices for the benefit of all tribes. The Hualapai Tribe 
sacrificed its facility allocations in order to transfer machines to 
tribes in the metro areas so that we could benefit from gaming. We did 
this, not knowing whether there would be a change in circumstances for 
us that would, at some point, make operation of a facility for us a 
viable option. We all understood the balance was necessary for all 
tribes with Tribal-State Gaming Compacts could benefit from gaming. 
Now, the Tohono O'odham's plans threaten to upset this balance.
    In addition to specifically designed limits, there was a plan so 
that each of the tribes with Tribal-State Gaming Compacts could benefit 
from gaming, from the tribes located in high density urban locations, 
such as the Tohono O'odham Nation's land in the Tucson metropolitan 
area to the most rural of tribes, like the Hualapai Tribe. To this end, 
Arizona tribes are classified into three categories: The Metro Gaming 
Tribes, those tribes located near Phoenix and Tucson, the Rural Gaming 
Tribes, or tribes located near areas with a population to support a 
gaming facility such as those located in Globe, Yuma, Camp Verde, 
Payson, and Show Low. Finally, there are the Non-Gaming Tribes also 
called the Transferring Tribes, which include those tribes with tribal 
lands in remote areas and without the ability or population to operate 
a casino. The Hualapai Tribe is a Non-Gaming Tribe. As a Non-Gaming 
Tribe we lease our machine allocations to other tribes in the metro 
areas through contractual agreements we refer to as Transfer 
Agreements. As a result of our Transfer Agreements, we participate in 
gaming and receive much needed revenue. We are able to use a resource 
we have by virtue of our Tribal-State Gaming Compacts to benefit 
financially. The believe the viability of our Transfer Agreements is 
potentially at risk due to Tohono O'odham Nation's plans. Most Transfer 
Agreements contain provisions that automatically terminate the Transfer 
Agreements if the ``Poison Pill'' provisions of the Tribal-State Gaming 
Compacts are triggered, thus removing all limits on gaming and thus 
eliminating the need for the Metro Tribes to lease machines from Non- 
Gaming Tribes. Some Transfer Agreements also include early buy-out 
provisions for the Metro Tribes to exercise if they need to terminate a 
Transfer Agreement early. Obviously, an additional casino in the 
Phoenix market will result in changes in market conditions that places 
the Transfer Agreements at risk because the new facility may lead to 
the Arizona legislature legalizing commercialized non-Indian gaming, 
which will definitely trigger the Poison Pill or changes market 
conditions so that the Metro Tribes exercise the early termination 
provisions of the Transfer Agreements. Either way, my Tribe, the 
Hualapai Tribe bears the biggest burden of the outcome of this dispute. 
We will be eliminated from the gaming industry and will lose much 
needed revenue. The Tohono O'odham Nation's proposed West Valley Resort 
has the potential to effectively change the face of gaming in Arizona 
and tribes like mine, stand to lose the most.
Deception Then or Deception Now--Deception is Deception
    In late 1999, before entering the negotiation process an Agreement 
in Principle was developed for the Tribal Leaders to sign as evidence 
of the commitment to work together in good faith. This document 
included language that specified that in the event an individual tribal 
interest superseded the common goal, there would be full disclosure. On 
January 7, 2000, Edward Manual, Chairman of the Tohono O'odham Nation. 
In addition to the Tohono O'odham Nation's pledge through its tribal 
leader on January 7, 2000, the Tohono O'odham Nation actively 
participated in negotiations and later in the campaign to get gaming 
authorized by Arizona's voters. During this process, the clear 
understanding and expectation and understanding of all participating 
tribes was expressed multiple times, either in testimony to the state 
legislature or in campaign materials urging support for Proposition 
202, the initiative that authorized Indian gaming in Arizona. The same 
understanding expectation was also expressed and communicated by the 
Governor's Office and the Secretary of State through various press 
releases and in materials circulated to the voters. More specifically, 
on April 8, 2002, David LaSart, AIGA Executive Director testified 
before the Arizona Legislative Committee that Proposition 202 compacts, 
``include the limitation of facilities in the Phoenix-metro area to the 
current number [7] and allows the possibility for only one additional 
facility in Tucson.'' In the voter information pamphlet developed and 
circulated by the 17-Tribe Indian Self-Reliance Initiative to support 
Proposition 202, the voters were advised, ``[u]nder Prop 202, there 
will be no additional facilities authorized in Phoenix, and only one 
additional facility permitted in Tucson.'' The Tohono O'odham Nation 
was one of the 17 tribes that provided funding to support Proposition 
202 and that was used to pay for this voter information pamphlet. In 
Governor Hull's February 20, 2002 Press Release, she advised the 
residents of Arizona, the agreement reduced the number of gaming 
facilities in Arizona by 25 percent and that there would be ``no 
additional casinos in the Phoenix metropolitan area and one additional 
casino in the Tucson area.'' The Secretary of State's Voter Guide for 
the November 5, 2002 election contains consistent information about 
Proposition 202 stating, ``Voting `yes' on Proposition 202 ensures that 
no new casinos will be built in the Phoenix metropolitan area and only 
one in the Tucson area for at least 23 years.'' Despite all of Tohono 
O'odham Nation's active participation in the campaign process, the 
Tohono O'odham Nation is now saying there was never a promise to limit 
the number of machines in the Phoenix metro area. Their actions beg a 
few relevant questions. First, if there was never a clear understanding 
and agreement that there would be no additional casinos in the Phoenix 
metro area, why didn't the Tohono O'odham speak up during the campaign 
to advise all parties that they did not agree to the campaign promise 
that the negotiated agreement meant that there would be no new casinos 
in the Phoenix metro area? This statement was not a one-time statement; 
it was one that was made repeatedly on many different occasions by many 
different people, both verbally and in writing. How is it that everyone 
from the Governor to the Secretary of State to the other Tribal Leaders 
understood that the agreement that would be passed by Proposition 202 
meant there would be no new casinos in the Phoenix metro area but 
Tohono O'odham did not?
    Now, to support their new position, in written testimony submitted 
to the Committee, the Tohono O'odham refer to various 2012 depositions 
to support their position that there was never a promise of ``no new 
casino in Phoenix''. They include excerpts from depositions of W.M. 
Smith, Clapham, Ochoa, Severns, Lewis and LaSarte. See Written 
Testimony of the Honorable Ned Norris, Jr., Senate Indian Affairs 
Committee Legislative Hearing on S. 2670, Keep the Promise Act of 2014, 
September 17, 2014. However each of these individuals state, they do 
not recall any specific promise. (Emphasis added). Basic statement 
analysis of ``I do not recall'' suggests the individual had the 
information at one time but simply does not remember it at the present 
time. Thus, the deposition excerpts only mean that at the time the 
deposition was taken, the witnesses merely did not remember. It does 
not mean the promise of ``No New Casinos in Phoenix'' was not made. 
Multiple written documents, including the campaign materials, the 
Governor's February 20, 2002 Press Release as well as the Secretary of 
State's Voter Information Guide from the November 2002 Election written 
contemporaneously to the event, quite clearly evidence the promise.
    Either the Tohono O'odham intentionally chose not to correct the 
record and allowed misleading information to be provided to the voters 
in hopes their plans would not be discovered or they subsequently 
changed their position and now denying that they agreed with the 
numerous statements made during the Proposition 202 campaign.
City of Glendale
    The Tohono O'odham Nation then presents the City of Glendale as 
supportive of their West Valley Resort. However, it wasn't until the 
City of Glendale found itself in financial turmoil that Glendale 
changed its position on the West Valley Resort. Glendale's motivation 
is purely financial and it can be argued that the Tohono O'odham Nation 
bought their support. In various news articles, Councilman Gary 
Sherwood, who testified before the Committee about the benefits of the 
proposed West Valley Resort and elaborating what a great partnership 
the parties will enjoy, is quoted as saying ``We're hunting for 
money.'' Proposed West Valley Casino is Pitting Valley Indian Tribes 
Against One Another, Monica Alonzo, Phoenix New Times, February 6, 
2014. Councilwoman Norma Alvarez has stated, ``we're so broke.'' 
Glendale City Council Begins Formal Casino Negotiations with Tohono 
O'odham Nation, Monica Alonzo, Phoenix New Times, March 20, 2014. 
Following the decision to begin formal negotiations with the Tohono 
O'odham Nation, the City of Glendale applied for almost $800,000 in 
grants from the Tohono O'odham Nation. After years of opposing the 
Tohono O'odham Nation's proposed West Valley Resort, ``Glendale decided 
to try and reach into the tribe's pocket.'' Glendale Applies for Nearly 
$800k in Grants from Longtime Nemesis Tohono O'odham Nation, Monica 
Alonzo, Phoenix New Times, June 16, 2014. Then in August 2014, the City 
of Glendale and the Tohono O'odham Nation entered an agreement wherein 
the Tohono O'odham Nation agreed to provide the City of Glendale at 
least $26 million over a 20-year period. The agreement required the 
Tohono O'odham Nation to make an initial payment of $500,000 to the 
City of Glendale within 10 days of the agreement and annual payments of 
$1.4 million beginning 6 months after gaming begins. Glendale Council 
Oks Casino Deal with Tribe, www.azcentral.com, August 13, 2014. 
According to the written testimony of Councilman Gary Sherwood, the 
City of Glendale has already received a ``good faith payment'' of 
$500,000. See Written Testimony of Gary Sherwood, Councilman, City of 
Glendale, Arizona to the Senate Committee on Indian Affairs, S. 2670, 
September 17, 2014. To be direct, it is obvious that the support of the 
City of Glendale was purchased. However, based upon the Tohono O'odham 
Nation's history, the City of Glendale should be concerned about what 
could happen to their partnership with the Tohono O'odham Nation should 
the ``poison pill'' provisions of the Tribal-State Gaming compact be 
triggered or if the Tohono O'odham Nation changes its mind and denies 
that they ever agreed to a partnership with the City of Glendale as 
they have with the other tribes.
Bureau of Indian Affairs Opposition to S. 2670 Filled with 
        Misinformation
    We listened in shock and despair to the comments provided to the 
Committee by Assistant Secretary Washburn. Assistant Secretary Washburn 
works for the Bureau of Indian Affairs, an agency with a mission to 
``enhance the qualify of life, to promote economic opportunity, and to 
carry out the responsibility to protect and improve the trust assets of 
American Indians, Indian tribes, and Alaska Natives.'' See 
www.indianaffairs.gov/WhoWeAre. Yet, Assistant Secretary Washburn was 
advocating for one Arizona tribe over the other tribes, including the 
Hualapai Tribe and his testimony was completely inappropriate. As an 
agent of the Bureau of Indian Affairs, the Assistant Secretary is 
supposed to support all tribes. During his testimony, he referred to 
the Tohono O'odham Nation as ``impoverished'' with significant unmet 
needs. The Hualapai Tribe, like most Arizona tribes, struggles with the 
same, if not more significant unmet needs. To be direct, a reference to 
unmet needs should not justify the Assistant Secretary's position in 
opposition of S. 2670. In fact, if Assistant Secretary Washburn were 
considering unmet needs, his consideration would have and should have 
considered the unmet needs of ALL of Arizona's tribes. In addition, 
Assistant Secretary Washburn made reference to the Phoenix market being 
in a position to support an additional casino. However, he failed to 
identify any source to support his testimony to the Committee that the 
Phoenix gaming market can support another casino. Assistant Secretary 
Washburn did not present any evidence that the market can withstand any 
additional machines. Those of us in the area who work with gaming at 
the local level are in the best position to determine whether there 
will be an impact on the market. The act of opposing an additional 
casino is evidence enough that the market is not sufficient in the 
Phoenix metropolitan area to support another casino. Even if, for the 
sake of argument, the Phoenix market could support another casino, the 
underlying issue addressed by S. 2670 remains. Because the Assistant 
Secretary's comments were so biased and presented without support, we 
urge the Committee to disregard his position.
Possible Consequences--The Rest of the Story
    The Hualapai Tribe has used our gaming revenue to build 
infrastructure in our community and for the benefit of our members. 
We've constructed buildings such as the Health Building and the Boys 
and Girls Club, among others. Our gaming revenue assists tribal members 
in need of emergency food and shelter assistance, to pay medical care 
when Indian Health Service is insufficient, to provide wood for our 
elders during the harsh winter months. Several Hualapai members have 
received scholarships, funded by our gaming revenue and have used the 
funding to pursue higher education in hopes of creating a better future 
for our community. While we have other revenue sources, the loss of our 
gaming revenue would have negative impact that would not go unnoticed.
    There is much chatter and finger pointing about this issue being an 
issue of greed. We've witnessed storied painting the Tohono O'odham 
Nation as the victim and the Gila River Indian Community and the Salt 
River Pima-Maricopa Indian Community as the greedy villains wanting to 
eliminate the competition. Protecting market share is of course part of 
the issue, however there are bigger issues involved and at stake that a 
person unversed in the Arizona gaming industry may not understand or be 
aware. The Tohono O'odham Nation's plans place the Hualapai Tribe at 
risk for losing our gaming revenue. As mentioned previously, our Metro 
gaming partners may have motive to terminate our Transfer Agreements as 
a business decision. Further, our compacts do not continue 
indefinitely. At some point, the Arizona Tribes will need support to 
continue being the exclusive providers of gaming in Arizona. In 2002, 
the tribes made promises to the people of Arizona that no new casinos 
would be constructed in the Phoenix metropolitan area. Whether the 
Tohono O'odham Nation acknowledges they were an active participant in 
making those promises or not, the written evidence is out there. If the 
West Valley Resort is constructed it potentially endangers our ability 
to negotiate for additional compact terms both with the state of 
Arizona as well as with the voters. The Tohono O'odham Nation's plans 
make it extremely difficult for the Tribes to seek voter approval or 
even the support of the Governor for an extension of gaming beyond the 
current compacts.
    Each year, we closely monitor the Arizona legislative sessions to 
protect against the racetracks and commercial gaming interests who have 
made attempts to expand gaming off the reservation. In 2002, at the 
same time we were campaigning for the passage of Proposition 202, there 
was an attempt to expand gaming to Arizona's dog and horse tracks. Each 
time there is financial strain in Arizona, the concept is brought to 
the forefront. Part of our success at thwarting these attempts is due 
to the fact that Indian gaming in Arizona benefits all tribes with a 
State-Tribal Gaming Compact, including rural Non-Gaming Tribes and the 
fact that Arizona has enjoyed the positive benefits of well regulated 
and limited gaming. We've also capitalized on the inability to trust 
and rely upon promises made by commercial and racetrack gaming as 
demonstrated in other jurisdictions. If the West Valley Resort is 
constructed, the trust will be broken. Our ability to make promises 
people view as trustworthy and reliable is gone; thereby placing 
limited Indian gaming in Arizona on the path of extinction.
    Of further concern are statements made by attorneys for the Tohono 
O'odham Nation indicating their belief that they can repeat this 
process again; purchase land under the Gila Bend Reservation Land 
Settlement Act in the Phoenix metropolitan area, have the land placed 
into trust and open another facility, this time, perhaps in the East 
Valley of the Phoenix.
    The Hualapai Tribe, as a Non-Gaming Tribe stands to lose the most 
in this situation. The Metro Tribes will survive and adjust, however, 
the Hualapai Tribe stands to lose our gaming revenue: that is the 
bigger but untold story. As Chairwoman of the Hualapai Tribe, I cannot 
speak on behalf of the other Non-Gaming Tribes; however, I can share my 
concerns about the Tohono O'odham Nation's plans.
S. 2670 Is Only a Time Out
    In painting themselves as a poor impoverished tribe, who happens to 
be able to pledge $26 million to the City of Glendale for their 
support, the Tohono O'odham claims S. 2670 takes something from them. 
That is simply untrue. S. 2670 simply hits a ``pause'' button on their 
plans. It allows those who approved Indian gaming in Arizona, the 
Arizona voters, to have a say in the process. This action is quite 
appropriate. If at the end of the compacts, the voters want another 
casino in the Phoenix metro area, then they can authorize one. However, 
a new casino shouldn't be forced upon the voters without their 
consideration of the full impacts, including the impact to other tribes 
like the Hualapai Tribe.
Conclusion
    As the Chairperson of Hualapai Tribe, I urge you to push S. 2670 
forward. While I would have preferred the matter to be resolved among 
the tribes in Arizona, it is evident that we can no longer resolve this 
issue without Congressional intervention. Thank you.
                                 ______
                                 
   Prepared Statement of Robert Hart, Executive Vice President, Hunt 
                           Construction Group

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                                    City of Peoria, Arizona
                                         September 29, 2014
Hon. Jon Tester, Chairman,
Hon. John Barrasso, Vice Chairman,
Senate Committee on Indian Affairs,
Hart Senate Office Building,
Washington, DC.

Dear Chairman Tester and Vice Chairman Barrasso,

    On behalf of the City of Peoria, Arizona I write to express 
opposition to S. 2670 the job-killing legislation that attempts to 
break a promise of economic development for my community and the Tohono 
O'odham Nation. Our unanimous City Council resolution opposing this 
legislation is a blatant attempt to preserve market share of Native 
American Tribes on the other side of the Phoenix Metropolitan region. *
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    * The information referred to has been retained in the Committee 
files.
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    My Councilmembers and I have spent the past 5 plus years working 
with the Tohono O'odham Nation and were pleased to celebrate the 
groundbreaking of the West Valley Resort and casino in August. The 
development shares a border with the City of Peoria and we are thrilled 
to have the project underway because of the thousands of construction 
jobs and money that's already being spent in our community today 
because of the construction as well as the permanent jobs that will 
ultimately be created.
    I have personally taken vacation time from my employer and traveled 
to Washington D.C. to counter the misinformation and blatant lies being 
put forth by the East Valley Tribes and their supporters. The fact is 
that Arizona and, in particular, our West Valley region are growing. 
The majority of Greater Phoenix's growth will occur in Peoria and the 
West Valley so there is more than enough market share to go around.
    As local government leaders, I respectfully request that you 
consider our opposition to S. 2670. We are duly elected and have 
literally spent years talking with our constituents and the Tohono 
O'odham Nation. Those discussions have now yielded construction of the 
project and we oppose any effort that would eliminate these important 
jobs and set back our economic development.
        Sincerely,
                                               Bob Barrett,
                                                             Mayor.
                                 ______
                                 
                              Resident of Glendale, Arizona
                                         September 26, 2014
Hon. Jon Tester, Chairman,
Hon. John Barrasso, Vice Chairman,
Senate Committee on Indian Affairs,
Hart Senate Office Building,
Washington, DC.

Dear Chairman Tester and Vice Chairman Barrasso, and all Honorable 
Senate Committee members of the Indian Affairs Committee

    I am asking the following informational research, facts, and 
opinion become part of the Testimony for S. 2670 which is currently 
before your Committee.
    I am a business partner with my husband in our own business as well 
as a Facilitator of the Grassroots Tea Party Activists in the Glendale, 
Phoenix area. I have been involved in the research of the West Valley 
Resort & Casino project since it's inception meeting with Tea Party 
members, citizens of Glendale, Phoenix, and surrounding cities, 
conducting poll research of various businesses here in the valley and 
have found the reception to be extremely favorable in support of the TO 
Nation and the West Valley Resort & Casino. I was originally active in 
attending Glendale city Council meetings in support of the TO Nation 
and continue to do so when I have the availability of Tuesday night 
Council Meetings.
    This support continues to be favorable in that the economic 
downturn across the Country, and in particular in the City of Glendale, 
Arizona is not good. There have been few new startups and a lot of 
store/restaurant closings in Glendale specifically. There were many 
homes up for sale in City of Glendale which has slowed down a little. 
The City of Glendale in a 5-4 decision voted and passed a Resolution in 
favor of the TO Nation. I'm sure if Council member Ian Hugh, Norma 
Alveraz, Gary Sherwood, and Sammy Chavira were contacted they would be 
more than happy to provide a copy to all Senate Members of the Indian 
Affairs Committee. Be it known that the Mayor was one of the `No' votes 
and as you will see down in the text of my email, Mr. Weiers received a 
good bit of financial support in his 2012 Mayor Candidacy from GRIC 
(Gila River Indian Community) Independent Expenditures. There has 
always been a lot of money given to the City of Glendale in the past 
including a brand new Fire Truck. Westgate City Center has about 4 very 
large electronic billboards in front of the Arena and in the Restaurant 
area all constantly flashing/promoting GRIC Casinos. There are even a 
few of the Restaurants in Westgate City Center that do off-track 
betting and Poker. The City of Glendale is no stranger to Off-Track 
Betting establishments as well as Poker establishments in the Bars 
within Glendale. There are at least 2 Strip Clubs, one to the east, and 
one to the west on Northern of the West Valley Resort & Casino project, 
one of these exceptionally close to the City of Glendale City Hall. For 
anyone to complain about a Casino being near a school, of which is not 
`close/near' the school, more like an approximate \1/2\-\3/4\ mile away 
to the south of the property where the Resort/Casino is being built, is 
an oxymoronic statement. When one can travel just a little further 
south down 99th Ave to Glendale Ave and go into Westgate City Center 
and go into any restaurant/bar located there and be in the vicinity of 
gambling, drinking establishments, etc. The Casino is nothing more than 
an enlarged entertainment center with restaurants, convention centers, 
and drinking establishments, nothing different than what is in Westgate 
City Center or down the road going into Glendale downtown district. 
Directly across the street from the Casino to the north is the city of 
Peoria and restaurants, small businesses, etc. and they have no problem 
with the Casino. In fact the City of Peoria has offered to provide 
Water to the location. Also in the Resolution passed by Glendale 
Council, TO Nation has graciously offered to provide quite a bit of 
money over the next few years and give the water usage to the City of 
Glendale.
    Also, to show just how the integrity of the Mayor is not, he has 
already, in my and others opinion, violated the City Ordinance/
Agreement with the TO Nation by slamming them for a 2nd time at these 
hearings. He is going against the promise and agreement passed by City 
of Glendale Council with the TO Nation/West Valley Resort & Casino.
    To reiterate a statement made to me face to face by Senator John 
McCain at a Townhall meeting when I approached him after the meeting 
asking questions of why is it ok for the State of Arizona to support 
the building ad financing of a Navajo/Hopi Casino--Twin Arrows in 
Flagstaff with no problem, promote GRIC Casinos all over the place 
within Metro Phoenix, billboards, TV ads, and Radio Commercials with no 
problem, yet condemn another Tribe truing to do the right and legal way 
to use our American Free Enterprise system and create a beautiful 
Resort & Casino and Convention Center--Senator McCain's response to me 
was (he looked me straight in the eye) and responded to me `My dear, 
it's all about the money, It's Always about the money!' and laughed.
    Please continue to read what I sent on to Mr. Washburn and ensure 
that all of this becomes part of the Testimony allowed within the 
allotted timeframe on S. 2670 * which is now before your Committee of 
the 113th Congress (2013-2014): Keep the Promise Act of 2014. Comment: 
this so-called `Keep the Promise Act' initiated by GRIC is a sham, and 
a disgrace to all that is honest and free and all peoples and tribes 
wanting to participate in the United States Free Market and Free 
Enterprise System.
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    * The information referred to has been retained in the Committee 
files.
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    Thank you.
        Respectfully,
                                      Francie L. Romesburg,
                   Grassroots Tea Party Activist Facilitator/Leader
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    The Committee received 517 signatories from the City of Glendale, 
Arizona who oppose the Tohono O'odham Nation's proposed casino in the 
City of Glendale. The Committee also received 361 individuals letters 
from the Gila River Indian Community expressing their opposition to the 
Tohono O'odham Nation's proposed off-reservation casino in Glendale, 
Arizona and support for H.R. 1410. *The information referred to has 
been retained in the Committee files.*

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