On Wednesday, July 23, 2014 the Senate Committee on Indian Affairs held a hearing entitled Indian Gaming: The next 25 years. There were 4 panels that testified but the most important was the last one. On it was Diane Enos, President of the Salt River-Pima-Maricopa Indian Community, Mayor Jerry Weiers of Glendale and Ned Norris, Jr., Chairman of the Tohono O’odham Nation.
I have transcribed verbatim the 5 minute opening remarks of all three principals and those remarks are offered at the end of this blog. It’s long and an optional read. You may choose to read it…or not.
There were take-aways from all 3 speakers. President Enos said, “They looked us in the face and lied. They broke faith with us and the voters of Arizona.” It is not only evident but sad that the TO lied to its Sister Tribes. They broke faith with not only the other tribes but with every voter is the state that approved the 2002 Compact. They have squandered the trust that had been placed in them and that will be very difficult to overcome. In 2027 the Compact will be up for renewal and approval by the voters. If there is a casino in Glendale it will give proof to the voters that a new compact is not to be relied upon and that notion could lead to voter rejection of a Compact renewal.
Another concern raised by President Enos was, “Now, even our existing establishments are in jeopardy as corporate gaming interests point to this deception to justify opening up Arizona to commercial gaming, like Montana.” Mayor Weiers reiterated this sentiment by saying, “As a former state legislator, I know that if gaming happens in Glendale there will be a strong effort in the Arizona legislature to authorize non-indian gaming in the state and that will have a devastating effect on all of our tribes.” Think about it. The court recently ruled that the state had diverted $1 billion from education funding and mandated that the state repay this diversion of funding. The idea of opening up the state to commercial gaming will look very attractive to state legislators. They can levy heavy taxes on the industry and use the revenue to repay the deficit in educational funding. In the process a major source of revenue for every state tribe will be in jeopardy.
Mayor Weiers also said, “It’s important to note that Glendale may not be the only city impacted. Our sister cities know that unless Congress acts, they may be next. There are over 200 other county islands in the Phoenix metropolitan area and TO attorneys have said the Tribe has the right to close its existing three casinos and open them on these county islands.” If the TO are successful in planting a casino in Glendale it is an action destined to be repeated. Where? Take your pick…Scottsdale? Phoenix? Tempe?
Chairman Ned Norris used two tried and true arguments. He opened with a description of his Nation’s poverty and used it to justify the TO’s actions. His argument appears to be if you are poor you have the right to do whatever works. In order to avoid responding to any allegations, he attacked by saying, “…the Nation respectfully requests that you put an end to this self-serving, mean-spirited, multimillion dollar lobbying campaign against our people and stop this piece of 19th century throwback legislation.” He brushed everything aside by saying that the courts had ruled in their favor. A closer look shows that the judicial issues settled were very narrow and when any major legal complaints arose that the TO deemed to be a serious threat or might not be decided in their favor, they raised the shield of sovereign immunity. Sovereign immunity means that a tribe is considered in the same context as a foreign country and cannot be sued.
President Enos commented, “Contrary to what Chairman Norris asserted, the court had to dismiss the charges that the State of Arizona filed against the Tohono O’odham of fraud and misrepresentation and promissory estoppel because they raised sovereign immunity defense. “
Pick your poison for it may be coming. We could see commercial, non-Indian gaming throughout the state; or the TO planting 3 more casinos in the Phoenix metro area; or a non approval by the voters of the renewal of another Indian Gaming Compact in 2027. All because the TO lied and chose willfully and deliberately to ignore promises made in 2002.
Testimony of Diane Enos, President, Salt River-Pima-Maricopa Indian Community
“Mr. Chairman and members of the committee thank you for the opportunity to testify. For 20 years Arizona Indian gaming has been stable and successful but today we face a crisis, off reservation gaming. The Tohono O’odham nation wants a casino 150 miles from its government center, on 54 acres that is within my Tribes original 1879 reservation.
“I am sorry to have to say this – this is a problem that only Congress can fix. We cannot fix it without your help. Congressional action on HR 1410 is the only remaining recourse for the tribes and voters of Arizona. So I am here today to ask that you swiftly enact this legislation. The bill is a measured and appropriate solution to a horrendous predicament.
“Beginning in 1999, 17 Arizona tribes came together to begin renegotiating our expiring gaming compacts. I was on council at the time. We had a real challenge. The state insisted on a single compact for all tribes that reduced the allowable number of casinos and restricted casinos from being opened in urban areas. It was tough negotiating. Tribal leaders met more than 85 times. We met with the state more than 35 times. Our relationship solidified as meetings lasted late into the night, some lasting several days.
“Once we agreed on the compact Arizona voters had to approve it. Tribes, including Tohono, contributed more than $23 million to the campaign. We worked tirelessly with the Governor’s office on television and radio, giving interviews, buying ads, distributing voter pamphlets. The major thrust of the campaign was to promise voters there would be limited gaming or “no additional casinos in the Phoenix metro area.” We repeated this promise over and over for two reasons. Number One, we believed in it. The Governor had demanded that the four Phoenix metro tribes, Salt River, Ak-Chin, Gila River, Fort McDowell, each give up their right to operate an additional casino under the compacts then in effect. So, we gave up those rights to insure that all tribes in Arizona could continue to benefit from the gaming exclusivity. That was the goal of our fight.
“The second reason was because through polling the tribes knew this promise would help to convince voters to approve the compact, which they barely did on election day, 50.9%. The day after the vote the Tohono’s chairman was quoted in the Tucson papers saying, ‘To us this is a major victory. We stayed together. We stayed united.’ We now know this was not true. Our partners in this effect, in this effort, the same people we fought alongside day in and day out, had been working behind our backs and behind the backs of Arizona voters the entire time.
“Documents recently disclosed by Tohono revealed that they were acting secretly to buy casino land in metro Phoenix as early as March, 2001, a full year and a half before voters approved the compacts and at the very same time that tribes in the state were promising voters that there would be no additional casinos in the Phoenix metro area. They made a calculated choice to keep their plan secret for years from other tribes and to violate our promise to voters. They looked us in the face and lied. They broke faith with us and the voters of Arizona.
“Now, even our existing establishments are in jeopardy as corporate gaming interests point to this deception to justify opening up Arizona to commercial gaming, like Montana. This deception will also impact the state tribal compact renewal in 2027. That is why, Mr. Chairman, many Arizona tribes, cities, the state and city of Glendale, are fighting so hard to oppose the Glendale casino. We want to insure that our word is good and that tribes in Arizona and across the country can continue to benefit from the economic engine of IGRA. There remains poverty and great need for service in all Arizona tribes. The loss of gaming revenue would be devastating.
“With me today are over 25 elected officials from tribes and Phoenix metro cities. We reluctantly come to Congress to fix a problem caused by Tohono’s decision to violate our promise to voters. Our attempts to persuade the tribe have failed and the courts are powerless to remedy Tohono’s fraud and misrepresentation because they chose to raise sovereign immunity. The Keep the Promise Act simply conforms tribal behavior to tribal promises. It doesn’t change Indian gaming. It doesn’t create precedent and it doesn’t amend the Gila Bend Act. It protects Arizona Indian gaming. If you believe that government integrity matters, move the bill out of this committee. Thank you. I am happy to take questions.”
Testimony, Jerry Weiers, Mayor of the City of Glendale
“Mr. Chairman, members of the committee, I am here today to discuss the controversial proposed tribal casino in the city of Glendale. I’ll present my council’s most recent views on this project and then also my personal request for swift action on HR 1410, The Keep the Promise Act.
“My name is Jerry, pronounced ‘wires.’ I was born in Deadwood, South Dakota. My family moved to Arizona when I was just 8 years old. I am the Mayor of the city of Glendale, a city of 232,000 people which is the 72nd largest city in the United States. Before becoming Glendale’s mayor, I served in the Arizona legislature for eight years.
“I supported Arizona’s Proposition 202 ballot initiative which gave tribes the exclusive right to conduct gaming but limited casinos to tribal reservations. One key aspect of the initiative was there would be no additional casinos in the Phoenix area. As a Glendale resident this was a primary factor in my support for the Proposition. My wife and I chose to live in Glendale, in part, because it was not near any of the large Phoenix area casinos and we believed the initiative preserved our neighborhood as it was.
“Like many Glendale residents I was blindsided when the Tohono O’odham Nation, I’ll respectfully refer to as the TOs, announced in January, 2009, that it was going to create a reservation and build a Las Vegas style casino on a 54 acre county island within our city limits. This announcement came seven years after the voters approved the ballot initiative which we thought prohibited new casinos in the area. It also came five years after Raymond Kellis High School opened just across the street from where TO is proposing to operate its casino, a site within 2 miles of 12,000 homes.
“Now, as you can imagine, we were mad, we are mad. The city has been involved in two lawsuits at an enormous financial cost. The City Council passed a resolution opposing the casino because it would hurt the interests of our residents. My wife and I were completely shocked at what we learned- while TO and other tribes were telling voters there would be no additional casinos in the Phoenix area, TO was actually looking to purchase casino land in Glendale. Moreover, they knew what they were doing was wrong. The tribe went to great lengths to keep their plan secret from other tribes, local governments and voters. The deceit did not stop there. The TO had already purchased Glendale land when a school district announced plans to build a new Kellis High School just across the street. The TO watched us built a school while continuing to keep its casino plans secret and said nothing. We never thought our children would be across the street from a Las Vegas style casino.
“My city’s been in chaos for the past five years and the federal government seems unwilling to help us. Last week, after the Interior Department’s decision to take the TO’s land into trust, the city council voted 4-3 to repeal our 2009 resolution opposing the casino and passed a new resolution. This new resolution says that Glendale does not object to the trust land being utilized for gaming. President Kennedy once said let us never negotiate out of fear. Well, with few choices left, the slim majority of my council felt that we had to come to the bargaining table with the TO. Our choice was not ideal — continue to fight and hope for action from this body or give in to this casino being forced on us. It’s frustrating to be a city of our size and have no choice on a casino proposed by a tribal government that’s more than 100 miles away.
“It’s important to note that Glendale may not be the only city impacted. Our sister cities know that unless Congress acts, they may be next. There are over 200 other county islands in the Phoenix metropolitan area and TO attorneys have said the Tribe has the right to close its existing three casinos and open them on these county islands. We are a test case but it is the start of a very slippery slope. If Congress does not act, the entire Phoenix area should be prepared for more off-reservation casinos.
“As a former state legislator, I know that if gaming happens in Glendale there will be a strong effort in the Arizona legislature to authorize non-indian gaming in the state and that will have a devastating effect on all of our tribes. And even if the state legislative effort to authorize non-indian gaming is not successful, these compacts are only valid for another dozen years. At that time the tribes will have to go back to the voters and after what we’ve experienced, I can’t say I blame the voters for questioning agreements of the past.
“That’s why I urge this committee to approve HR 1410 so that it may be quickly adopted by the Senate. The bill is not about holding one tribe back but preserving a much needed economic development tool for all of Arizona’s tribes. Thank you once again for the opportunity to testify. I’m happy to answer any questions that you may have, sir.”
Testimony of Ned Norris, Jr., Chairman of the Tohono O’odham Nation
“Thank you. Mr. Chairman and members of the committee, my name is Ned Norris Jr. I am the Chairman of the Tohono O’odham Nation. I am here today representing the nation’s more than 32,000 members.
“Since time immemorial the nation and its members have lived in Southern and Central Arizona. Our reservation is composed of several noncontiguous areas in Pima and now in Maricopa County. Most of our reservation land is located in remote isolated areas and our population is one of the poorest in the United States with average individual incomes of just over $8000. In the 1960s the Corps of Engineers built a dam to protect nearby nonunion commercial farms. The dam backed up and flooding destroyed nearly 10,000 acres of our Gila Bend Reservation, land in a fertile area of Maricopa County, ruining homes, farms and our local church. Our elders recalled the desecration of their cemetery as a result of flooding. Tribal members were forced to move on to a small 40 acre parcel of land known as San Lucy Village where today they crowd into small houses and live well below the poverty line.
“In 1986 Congress enacted the Gila Bend Act to compensate the Nation for its losses. Pursuant to the act the Nation settled our legal claims and gave up nearly 10,000 acres of our reservation land and water rights. In return we have the right to acquire replacement reservation land without any conditions on the future use. We acquired replacement land in the West Valley and Maricopa County and the Department of the Interior took it into trust.
“Four West Valley cities, Peoria, Tolleson, Surprise and now the City of Glendale have taken formal positions of support for the nation’s project and against HR 1410. I’m honored to be joined today by Mayor Barrett of Peoria and Councilmembers Sherwood and Chavira from Glendale. We are respectful of rights of individuals like Mayor Weiers to express their personal opinions regarding the Nation’s project. However formal official positions of the communities in the West Valley could not be more clear. They support the project.
“Undaunted by this local support opponents of the nation’s project have pushed HR 1410, a bill that would undue a nearly 30 year old land and water rights settlement agreement, all in order to protect the interest of a few East Valley gaming tribes. Proponents of HR 1410 asserted a wide range of legal claims to block the nation’s project but a federal court has now explicitly confirmed that the Arizona gaming compact that the Nation, the state and all tribes explicitly signed provides that the Nation has the right to conduct gaming on this property. The court roundly rejected interpretations of the compact advanced by proponents of 1410 calling them ‘entirely unreasonable.’
“Mr. Chairman, this is the third time in five years I have had to testify before Congress in defense of the Nation’s rights. The Nation has complied with the letter of every applicable law and has gracefully answered every allegation no matter how ridiculous or how offensive and every lawsuit and in every congressional hearing. But the millions of dollars the Nation has been forced to spend defending its rights would have been better spent to build houses for our elderly, pay for college tuition for our children and bolster our head start programs.
“Honorable Chairman of the committee and members of the committee, the Nation respectfully requests that you put an end to this self-serving, mean-spirited, multimillion dollar lobbying campaign against our people and stop this piece of 19th century throwback legislation. We ask that you see this legislation for what it is – the first time in the modern era in which Congress would unilaterally renege on the solemn promises made by the United States and in the Indian land and water rights settlement. This project is fully in line with IGRA section 20, equal footing exceptions that will benefit the Nation, local communities and the state of Arizona for the next 25 years and beyond. I thank you for your time the Nation is happy to answer any questions.”
“Thank you all for your testimony. I can feel the emotion up here. So, I am just going to ask two questions. I’m going to ask one of Diane and one of Ned. Number 1, Diane, this question, you just heard Chairman Norris state that this would be the first time that there would be unilateral reneging on a promise. You’re Native American. I want to know what your thoughts are on that statement.”
“It’s ironic that the Tohono O’odham talks about reneging on a promise because that’s what they did when they sat down with us all those days and years of working with us. The promises that they violated- there was first an agreement in principle. We all signed a document agreeing to put our trust in each other, recognizing sovereignty of each tribe but yet also requiring each tribe that signed that document, if you have an interest that’s different from the group, the coalition of 17 tribes, you must tell us. They didn’t tell us. You know the real tragedy here today, Senator Tester, all of this could have been avoided. All the millions that Chairman Norris talks about, all the times we have to travel and all these tribal leaders here, these city leaders that are having to come here to lobby you for help. All of this could’ve been avoided if they had just told us during those negotiations; if they had just told us what their intentions were instead of doing this behind closed doors and keeping it secret not only from tribes but the Governor and the voters of Arizona. All of this could have been avoided. “
“Just to clarify that if, if it goes the Tohono O’odham’s way, you do not believe that this would have negative impacts on Native Americans moving forward?”
“The state will open up to state-wide gaming as I said in my testimony. They’re waiting. They’re looking.”
“Ok. Ok, I gotcha. Chairman Norris, claims have been made that the Tohono O’odham promised not to open up a facility when 202 was being debated and sold and voted upon. Can you tell me if that is true or false?”
“Mr. Chairman, thank you for the question. We are not here to relitigate the arguments that the opposition has already raised in front of a federal judge. The federal court has already ruled on every single legal challenge that the opposition has raised on this issue. The federal courts have already ruled that there were no promises made. The federal courts have already ruled that there was never any agreement. The federal courts have already ruled that we will not violate the current compact and many other written decisions as well.”
“And just to recap Mayor Weiers, you are opposed to the gaming that is going to happen in your city but the city Council voted 4 to 3 to support the gaming. Is that accurate?”
“That’s accurate in the sense of, Chairman, the fact that our council has been split on this issue for years and just recently one councilmember switched his vote and, I guess my point I’d like to make is, should one person make a difference for the entire state and affect all the Native American tribes we have in Arizona. I think not.”
“We thank you and I just want to thank you for bringing this issue forward – it is very complex. I will tell you that I am sitting here listening to the arguments made vacillating back-and-forth as you make the arguments. It is not as clear cut as Senator McCain said when this thing started. Some of the most complex issues are issues dealing with Native Americans. If you consider the history and where we’ve been and where we’re going, as we talk about language; and we talk about taking care of folks with education and housing and police protection and water resources. These are important issues if you’re living it and you guys are living it. And we’ve got a lot of leaders in this audience that are living it and I can just tell you that it’s very difficult. With that…we’re going to…we will allow you to say something. Go ahead.”
“Contrary to what Chairman Norris asserted, the court had to dismiss the charges that the State of Arizona filed against the Tohono O’odham of fraud and misrepresentation and promissory estoppel because they raised sovereign immunity defense. “
© Joyce Clark, 2014
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