[Senate Hearing 113-506]
[From the U.S. Government Publishing Office]
S. Hrg. 113-506
S. 2670, KEEP THE PROMISE ACT OF 2014
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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
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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
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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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
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
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
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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