[Congressional Record (Bound Edition), Volume 161 (2015), Part 5]
[Extensions of Remarks]
[Pages 7014-7016]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          KEEP THE PROMISE ACT

                                  _____
                                 

                           HON. PAUL A. GOSAR

                               of arizona

                    in the house of representatives

                         Thursday, May 14, 2015

  Mr. GOSAR. Mr. Speaker, for several years, I have been actively 
involved in a troubling off-reservation gaming issue in my home state 
of Arizona involving the Tohono O'odham Nation. The tribe has been 
attempting to move from their ancestral lands in Tucson, into another 
tribe's former reservation in the Phoenix metro area, for the sole 
purpose of building a Las Vegas style casino.
  This comes after Tohono O'odham and 16 other Arizona tribes adopted a 
compact, approved by Arizona voters, which expressly promised there 
would be no additional casinos or gaming in the Phoenix metro area 
until 2027. In exchange for this promise, the voters granted the tribes 
a statewide monopoly on gaming and other tribes gave up significant 
rights.
  H.R. 308 was introduced to ensure that the promise of no additional 
casinos in the Phoenix area is kept until the existing tribal-state

[[Page 7015]]

gaming compacts expire, without interfering in the trust acquisition 
itself
  Let me explain how this legislation came to be and why it must be 
enacted into law. In return for exclusivity in Arizona, the tribes 
agreed to a cap on the number of casinos in the state and in the 
Phoenix metro area, to restrict the number of machines in the state and 
to share machine revenue with rural non-gaming tribes so they could 
benefit from the compact.
  Every urban tribe, except for Tohono O'odham, agreed to this 
limitation. Tohono refused, citing the need for a new casino in Tucson 
or on the rural part of the tribe's reservation. The state and other 
tribes finally agreed to the restrictions on gaming being pushed by 
Arizona's Governor and others, but also yielded to Tohono's stated 
need.
  After the agreement was reached, the tribes and state promoted their 
model compact by saturating the airwaves and newspapers with the clear 
message that under the compact there will be no additional casinos in 
Phoenix and only the possibility for Tohono O'odham to build one more 
facility in the Tucson area. Tohono O'odham alone spent $1.8 million 
dollars urging Arizona voters to rely on this limitation.
  Tohono had begun efforts to find land in the Phoenix area to open 
their fourth casino.
  The voters approved the tribal state compact in November 2002 and 
rejected two competing propositions. The first would have allowed 
unrestricted tribal gaming without any revenue sharing for rural non-
gaming tribes; the second would have allowed for full commercial gaming 
without restriction.
  Shockingly, a few months after the voters approved the compact, 
Tohono finalized a multiyear effort to purchase land in Glendale for a 
casino and used a shell corporation to conceal its identity.
  Tohono's dismissal of their promise to build no additional casinos in 
Phoenix is not something that Congress can ignore when the result will 
be so harmful to what had been a national model.
  Furthermore, Tohono has falsely been claiming a victory in court 
relative to their less-than-honest dealings with other tribes and the 
State of Arizona.
  This sentiment is factually wrong and morally indefensible. The 
Tohono ``won'' nothing based on the merits. Rather, the case was 
dismissed on the draconian doctrine of sovereign immunity. In other 
words, the court ruled that the tribe cannot be sued in court because . 
. . It can't be sued in court.
  In fact, the Court made a statement that it would have likely ruled 
against Tohono had it not been for sovereign immunity. Mr. Speaker, I 
submit evidence obtained from underlying litigation discovery in State 
of Arizona v. Tohono O'odham in order to supplement the record on H.R. 
308. The opponents of this bill falsely claim that the Tohono O'odham 
Nation (Tohono O'odham, TO or the Nation) ``won'' in court relative to 
TO's less-than-honest dealings with other tribes and the State of 
Arizona. Indeed, one Member of the House publicly stated that the bill 
circumvents a court ruling.
  This sentiment is factually wrong and morally indefensible. The TO 
``won'' nothing on the merits. Rather, the case was dismissed on the 
draconian doctrine of sovereign immunity. In other words, the court 
ruled that the tribe cannot be sued in court because . . . It can't be 
sued in court. That circular logic is pretty much the extent of the 
victory. The merits of the case were never addressed, and that is why 
Congress' oversight in these matters is so important.
  As it turned out, discovery in State of Arizona v. Tohono O'odham 
revealed that the TO Nation was secretly looking to purchase land in 
the Phoenix metropolitan area during the last 18 months of the compact 
negotiations and during the entire referendum process when the tribes 
were actively seeking support from Arizona voters on the basis that the 
model compact would not permit additional casinos in the Phoenix area. 
Evidence of these secret plans were primarily obtained from Vi-ikam 
Doag Industries (VDI), a Tohono O'odham chartered and owned 
corporation. Below are quotations from meeting transcripts and minutes:

       5/18/01: VDI meeting notes including a description of a 
     presentation delivered by Mark Curry, Tohono O'odham's lead 
     negotiator in compact negotiations. The notes reflect ``107th 
     Avenue-Stadium,'' ``gaming compact-unsure what will happen,'' 
     ``put in a shell company-need to keep it quiet especially 
     when negotiations of compact at stake''
       6/26/01: VDI meeting with Tohono O'odham's San Lucy 
     District Council. ``We are also looking at another project . 
     . . based on discussions we had and continue to have about a 
     casino on the west end of Phoenix. And part of that 
     discussion that we've had was that--we didn't want to 
     publicize that because of the confidentiality in terms of 
     that issue . . . Now, in the meeting we had last summer--with 
     the task force and Jim had met with the casino people in 
     their--in their environment. And the understanding is that it 
     is a good opportunity again depending on what happens with 
     the big compact. . . You have a situation with a 
     confidentiality issue. And that's how we're holding it, as 
     confidential, because we don't want, you know, people to know 
     we are seriously considering this. Because if you do, I'm 
     sure that there's going to be a lot of resistance from, you 
     know, the general public.'' p. 25:5-20.
       8/26/01: San Lucy District Meeting: ``[Male Voice]--but 
     that is why the Buckeye property has been identified as a 
     casino-feasible area. And that's really why we focused on 
     that. There--there is some county islands closer in to 
     Phoenix that we have looked at.'' p. 24:10-15.
       8/22/02: VDI meeting transcript discussing the West Phoenix 
     casino project, whether Governor Hull's successor would also 
     opposed additional Phoenix area casinos, and the importance 
     is confidentiality ahead of the vote on Proposition 202. 
     ``Max: Because if that's going to be the position of the 
     State, they don't want any more casinos around the Phoenix 
     area, then they're going to fight it, whoever the new 
     governor is, (inaudible), if he's going to go along--he or 
     she go along with Jane Hull regarding taking a position. Jim: 
     Which is why we really want to wait until the initiative 
     passes before its gets out.'' TON0116093-94.
       9/19/02: VDI meeting transcript discussing a possible leak 
     of information related to the West Phoenix project. ``Jim: So 
     there is some type of information going out or a leak or--
     they didn't Jonathan and Mark [two in-house Tohono O'odham 
     attorneys] didn't seem too concerned, is what they had got it 
     wasn't up at the governor's level or at the negotiating level 
     . . . but it's still a concern out there, especially prior to 
     the propositions coming up for election. . . . So, we just 
     need to be careful about, you know, things getting out and 
     spoiling it'' p. 14:18-15:6.
       10/25/02: VDI meeting transcript discussing the upcoming 
     Prop 202 vote. ``Male Voice: We are . . . a week and a half, 
     two weeks away from the vote. And that's going to clarify a 
     lot also on what we can do. And, you know, assuming that it 
     is 202 that passes, then, you know, we'll proceed in how we 
     need to make that project develop.'' p. 2:7-3:24.
       This evidence, attached hereto, establishes the fraudulent 
     intent by the TO to deceive the state, the public and other 
     tribes. Proposition 202, which authorized the existing 
     tribal-state compacts, was approved by voters on November 5, 
     2002, less than two weeks after VDI discussed waiting for 
     voter approval before moving forward with the West Phoenix 
     casino plans.
       In addition to the above, additional transcripts underscore 
     the same double-dealing after the vote:
       2/10/03: VDI meeting transcript discussing VDI's meetings 
     with the Tohono O'odham Gaming Authority. ``And I think 
     that's coming about because the agreement has been signed, 
     the compact has been signed, and so there are no more real 
     concerns that might jeopardize our chances on this 
     discussion. So I think they're ready to move forward.'' p. 
     3:2-4:5.
       2/23/03: VDI meeting transcript discussing the Glendale 
     plan. ``Through 99-503 [Gila Bend Act] we could have a casino 
     built, it allows it, but politically we might have problems. 
     If we decide to, we need to put it in escrow and it needs to 
     be kept confidential for the time being.'' p. 17:22-18:14.
       2/23/03: VDI meeting transcript discussing potential 
     political problems with the proposal. ``Male Voice: I just 
     hope that . . . in terms of the political (inaudible) that's 
     going to be coming (inaudible), that some of the metro tribes 
     over there don't come back and jump on us too. . . . Male 
     Voice: Might Gila River and Salt River indicate that it's a 
     violation of the 202 (inaudible) metro area? Male Voice: 
     Well, that's what I said in terms of political impact, is 
     that even--even those metro tribes, particularly those three 
     that are right there, might--might say something. But that's 
     a big question mark. That's all.'' p. 48:21-50:23.

  In March 2013, Tohono O'odham created Rainer Resources, Inc. and 
incorporated the company in Delaware as an attempt to keep the land 
purchase confidential. Rainer Resources then purchased the Glendale 
parcel in August 2013. Rainer Resources and Tohono O'odham kept their 
plan secret until April 2009, when the Nation submitted its fee-to-
trust application to the Department of the Interior and finally 
disclosed its scheme to its sister tribes.
  These statements were uncovered during discovery in State of Arizona 
v. Tohono O'odham and revealed the depth of Tohono O'odham's conscious 
effort to mislead and defraud voters, as well as its State and tribal 
partners. Unfortunately, the U.S. District Court dismissed the State of 
Arizona's fraud and misrepresentation claims not on the merits, but 
because Tohono O'odham refused to waive its sovereign immunity from 
suit. With regard to the State of Arizona's ``promissory

[[Page 7016]]

estoppel'' claim, which alleged that Tohono O'odham made false promises 
that induced the parties to enter into the compact to their 
disadvantage thus creating an enforceable promise, the court found on 
May 7, 2013, that the evidence supported the claim but that Tohono 
O'odham's sovereign immunity nevertheless barred its review of those 
allegations. Although Congress, through IGRA, waived tribal sovereign 
immunity for claims arising from executed compacts, the court 
determined Congress had not done so with regard to actions that 
preceded a compact's execution such as those that gave rise to the 
fraud, misrepresentation, and promissory estoppel claims in State of 
Arizona v. Tohono O'odham. The legal conclusion is dubious as it 
promotes fraud and sharp dealings long since rejected in modern 
commerce and illegal in many contexts.
  H.R 308, the Keep the Promise Act, is narrowly crafted to address 
those claims that are shielded by Tohono O'odham's assertion of 
sovereign immunity.
  I believe it is important for the truth to be known. The tribe acted 
immorally and covertly against its fellow tribes, the State and the 
general public. This incident and breach of trust has proven that TO 
cannot be trusted in the future relative to business dealings, tribal 
matters and commercial relations. I urge Congress to resolve this issue 
and reaffirm its authority by providing proper oversight of commerce 
amongst tribes.
  An identical bill, H.R. 1410, passed overwhelmingly out of the 
Natural Resources passed the House last Congress by voice vote on 
September 17, 2013. This legislation has already passed the full 
Natural Resources Committee by unanimous consent in the 114th Congress.
  I urge immediate adoption of this commonsense legislation once again 
by the House of Representatives.

                          ____________________