On September 17, 2014 the Senate Committee on Indian Affairs met to consider the Senate Bill, S. 2670, Keep the Promise Act of 2014, introduced by Senators McCain and Flake. I have transcribed the testimony verbatim. Since I am not technically savvy enough to create a link to my file I will offer the first portion of the testimony at the end of this blog. If anyone reading this can tell me how to create a link to one of my files I would appreciate it.

This portion of the hearing deals with Assistant Secretary of Indian Affairs of the Department of the Interior, Kevin Washburn. He offers his testimony and then is questioned by Senator McCain and Chairman of the Committee Tester. He has to defend the Department of the Interior’s action of having approved reservation status to the Tohono O’odham. He does not work for the Bureau of Indian Affairs that will decide the question of allowing gaming on the TO’s new reservation. Having watched the hearing via the internet and then transcribing the hearing one cannot help but develop first impressions.

Mr. Washburn appears to be your typical bureaucrat, a small minded man enamored by his title and power; and rigid beyond all reason. I bet his business cards are engraved in gold. He certainly is good at towing the party line. He insisted that the Tohono O’odham (TO) are an impoverished tribe despite their annual revenue of over $36 million derived from their 3 casinos in the Tucson area but when asked if he knew how much revenue the TO earned annually he admitted that he did not know. He also insisted that there was no prohibition in any law, including the current Arizona Gaming Compact, that would prevent the TO from building a casino in the middle of Glendale.  His stance was since there is no legal prohibition from driving your car over a cliff or eating yourself to death, it’s perfectly all right to do so. The absence of a “no” makes any action permissible according to Mr. Washburn.

Senator McCain repeatedly and forcefully made clear the intent of the Inouye McCain Bill, formally known as the Gila River Indian Land Replacement Act of 1988. McCain said that just as with the voter approved state gaming compact, the universal assumption was that the TO would build its fourth casino in southern Arizona. No one contemplated the recent action taken by the TO. There is now concern that the TO may close its casinos in southern Arizona and rebuild on other county islands in Maricopa County. It’s not so farfetched a notion. Apparently TO council notes have been discovered that outline just such a scenario.

I expect that the McCain Flake bill will make it out of committee and will be approved or rejected by the full Senate. Until such time, the Tohono O’odham are making a millions of dollars bet that they will prevail and the casino will become a reality. They could end up losing millions of dollars. Not bad for an “impoverished tribe.”

Here is a verbatim transcript, Part I, of the Committee hearing:

Senate Committee on Indian Affairs Sept 17 2014

Chairman Tester:  “The committee will come to order. Today we are holding a hearing at the request of Senators McCain and Flake on S. 2670. The bill would address an issue specific to Arizona but one that could have broader implications for this committee and affect the role of Congress with regard to gaming compacts between tribes and states. The Indian Regulatory Act affirmed the authority of tribes to conduct gaming on Indian reservations and 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 and I think most of the members of this committee would agree that’s 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 passage of both the Indian Regulatory Gaming Act and the Gila Bend Indian Reservation Land Replacement Act. These acts form 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 and also invited the administration to give their perspective. Welcome Kevin. Overall this committee wants to insure that any action taken on this specific issue doesn’t have broader impacts for tribes across the country. Senator Brasher do you have anything to say?…”

Senator McCain:  (Missed much of Sen. McCain’s opening remarks) “…and I can assure the witness it was never the intent of Senator Inouye and I through months…weeks and months of hearings, to have an airdrop, no matter what rationale you are using for it because of some settlement, to have reservations, indian gaming, 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, apparently, 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’m 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 and I’m proud of that act and I’m proud of the benefit that has accrued to Indian Country. I am proud that there has been revenue sharing between, as it in our state of Arizona , between the gaming tribes and the state of Arizona, the contribution they’ve 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.”

Chairman Tester: “Thank you Senator McCain and Senator Brasher for your comments. I will now call up our first witness, Mr. Kevin Washburn, Assistant Secretary for Indian Affairs in the Department of Interior. Kevin, you’ve been with us many times. We always look forward to hearing the administration’s thoughts on these issues. The committee knows you’re busy so we’ll try to get through 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.”

Mr. Washburn: “Mr. Chairman, thank you. Mr. Vice Chairman, Senator McCain, thank you for having me here today. Maybe I shouldn’t be thanking you. This is a difficult issue and umm, I find myself nervous today and I guess it’s because I never like to disappoint my friends and umm, there are umm, no more passionate tribal leaders in the country that I know of than Greg Mendoza and Diane Enos and they are probably here in the room. Umm, and yet, we find ourselves being asked, being forced to provide our perspective on this bill. Umm, I have to tell you that I’m not really happy to be here, but, umm, when pushed I will tell you what I think about this bill and, umm, I believe that, ah umm, the Tohono Nation has an expectation of land in Maricopa County or in Pinal or Pima County and they’ve 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, umm, they came to Congress and looked for a settlement. Given the fact, umm, their expectations didn’t come out, umm, as they should have with regards the dam. So, Congress enacted the Gila Bend Act and promised them land, up to 10,000 acres, umm, in three counties and umm, in Arizona, central Arizona so long as it was not within an incorporated municipality. And umm, that was their expectation, that’s what the Gila Bend Act and Congress was well aware of gaming at the time the Gila Bend Act was passed and it didn’t preclude any prohibitions on Indian gaming. Indian gaming had been, 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, and uh, 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. And then shortly thereafter, in 1988 Congress enacted the Indian Regulatory Gaming Act that Senator McCain spoke eloquently about. The Indian Regulatory Gaming Act did not mention Tohono O’odham and indeed included a specific provision, umm, that allows umm, that allows, umm, an exception to the prohibition that allows gaming after the enactment of IGRA on lands acquired after that time. Umm, it included a specific provision, umm, that essentially speaks right to the situation involving the Gila Bend 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 who are haves and tribes that are have-nots. And despite the popular conception most tribes do not have gaming. Most tribes don’t benefit in any way from gaming. Umm, gaming was being strongly encouraged when the Gila Bend Act was passed. Ronald Regan’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 Regan signed the Indian Regulatory Gaming 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 this 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 is clearly allowed by existing law. And that issue has been litigated over and over and that’s 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 the neighborhood of 2 million people. Today the Phoenix metro area exceeds 4.3 million people. Surely there is enough room in the vast market for another tribe to benefit from gaming, especially an impoverished tribe. Last I checked, despite the recession and everything else that’s been going on, Phoenix is still one of the fastest growing cities on the country. And again, surely, umm, in the fastest growing cities there’s an opportunity for a growing gaming market, an 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’s not one that’s 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 and the only promise of the United States that’s at issue here today is the one made in the Gila Bend Act. And the only way the federal government can keep its promise to the Tohono O’odham is for this committee is 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. And in a tight fiscal market that kind of economic development should be an imperative. Opening this facility will 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’ll stand for your questions. Thank you Mr. Chairman.”

Chairman Tester: “Thank you Secretary Washburn. I know that Senator McCain has a conflict with Foreign Affairs, I believe. So I’ll let him go ahead of me.”

Senator McCain: “Mr. Washburn, ah, you talk about impoverished tribes. Would you say  Tohono O’odham fit into that category since they already have 3 casinos?”

Secretary Washburn:  “Yes, Senator. Despite…”

Senator McCain: “Yeah, in other words, you just, you just falsely gave the committee the impression as if the Tohono O’odham was an impoverished tribe without Indian gaming. They have 3 casinos, right?”

Secretary Washburn: “I didn’t…”

Senator McCain: “Is that true?”

Secretary Washburn: “I didn’t mean to give the impression that they were not a gaming tribe. They, indeed, already are. But I will tell you their gaming is in Tucson and Phoenix is a much larger market than Tucson and they are…”

Senator McCain: “They are certainly not impoverished, Mr. Washburn. Mr. Washburn, ah, in the ah, you said that it was the intent that indian gaming not be located in incorporated areas. Right?”

Secretary Washburn: “Yes. I…”

Senator McCain: “Isn’t that kind of technical because it’s in the middle of the city of Glendale ? It’s technical. Everything around it is incorporated. It’s not out in the desert.”

Secretary Washburn: “Senator, it was your bill and you wrote the language. We’re just applying it.”

Senator McCain: “You know something, Mr. Washburn? That’s a pretty smart ass answer and the fact is I’m telling you what the intent was. Okay? Now we wrote the bill and when we wrote it so that there would not be exactly what has happened now and if you want to interpret it 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’re not giving them a say in this. The city of Glendale has been split on this in various ways. So, so, you’re saying one, that it’s for impoverished tribes. Clearly, by any measurement, this tribe is not impoverished. Second of all, you say it was not the intent of the tribe, of the Act, to be in incorporated areas. It’s surrounded by incorporated areas, Mr. Washburn, and I can tell you what the intent is and I believe also that it’s 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’s why the other tribes are against such a move which would then impact their gaming operations and revenue. And has that been taken into consideration in your decision? The impact on other Native American tribal gaming?”

Secretary Washburn: “As I said, Senator, this is a rapidly growing market. Umm, it continues to be one of the fastest growing cities in the country. We certainly have a trust responsibility to all the tribes, but…”

Senator McCain: “So, it’s up to you to decide whether an area is fast growing or not, as to whether, what guides your decision?’

Secretary Washburn: “No…”

Senator McCain: “Mr. Washburn that has nothing to do with the law.”

Secretary Washburn: “It’s my responsibility to follow the law and follow what Congress said and what you said was, umm, outside of any municipality, incorporated municipality, anywhere in Maricopa County, and that’s what we read. That’s relatively clear and, umm, that’s what we determined and that’s what the courts have upheld and umm, we believe that they are a tribe that’s got significant burdens. They are one of the largest tribes in the country. They have roughly 40,000 members and they’ve got a lot of land to try to take care of with a modest revenue source. And umm…”

Senator McCain: “Three casinos is not a modest revenue source?”

Secretary 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 and I can assure you they can use more revenues.”

Senator McCain: “I can assure you every tribe in America can use more revenue. So you’re basing your decision as to what…are you saying they are impoverished?”

Secretary Washburn: “Senator, ahh….”

Senator McCain: “Are you saying they are impoverished, because you said, you’re referring to impoverished tribes. Are you saying this tribe is impoverished?

Secretary Washburn: “I, I want gaming to benefit all tribes but yes, I’m, I’m, I’m willing to live with the fact but yes, the Tohono O’odham is an impoverished tribe. It’s got a large number of members and many of them are living in very, very terrible conditions.”

Senator McCain: “And are you aware of the gaming revenue from the three casinos?”

Secretary Washburn: “Umm, ah, I’ve heard the revenue from the three casinos. I don’t have ‘em in front of me as I sit here.”

Senator McCain: “Do you know what they are, roughly?”

Secretary Washburn: “No.”

Senator McCain: “So, It doesn’t matter to you what, since you don’t know, it doesn’t matter what it is. So, you’re making a judgment as to the economic condition of the tribe without knowing what their revenues are. That’s really, really good Mr. Washburn. I don’t have any more questions for this witness.”

Chairman Tester: “Assistant Secretary Washburn, the department approves Class III tribal state gaming compacts. I believe, ah, the department has approved the latest compacts between the state of Arizona and the Arizona tribes. Ah, do you know if the type of compact currently in effect have a limitation as to the type of facilities in the Phoenix area?”

Secretary Washburn: “They, they do not have any limitations, umm, as to the number of facilities in the Phoenix area.”

Chairman Tester: “Ok. Ah, you mentioned in your testimony that the department does not support the bill as it would undermine promises made by the United States to the TO Nation and the Gila Bend Indian Reservations, ah, Land Replacement Act. Ah, I want you to describe if this bill were enacted, cause you describe the policy implications it might have on future settlements and negotiations between the tribes and the United States.”

Secretary Washburn: “Well, the potential is that, um, we will have, um, tribes feeling, um, this is the same stuff, a different day; that we were, ah, are just continuing in the mode of breaking treaties, breaking promises to tribes and that’s a, that’s 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. And so this would significantly undermine the promise that we made to Tohono O’odham and the Gila Bend Act and umm, I think that that, umm, would cause tribes to, umm, great pause in settling with the United States government that doesn’t live up to its promises.”

Chairman Tester: “So you believe that, ah, the Gila Bend Act, umm, gave the Tohono O’odham the authority?”

Secretary Washburn: “I believe it gave them the opportunity to take land into trust anywhere in Pima, Pinal or Maricopa counties and, umm, with some caveats. One of the caveats being it couldn’t be already incorporated land. And this is, so they went out and bought land that was not incorporated but was in Maricopa County. Umm, and umm, if we add requirements to that we’ve changed the promise. We’ve changed the deal we struck with Tohono O’odham.”

Senator McCain: “And did that Act anywhere refer in it, any reference to gaming?”

Secretary Washburn: “It had no prohibition on gaming whatsoever.”

Senator McCain: “Did it have any reference to gaming?”

Secretary Washburn: “It said that, umm, Indian reserve, lands could be used for all purposes, which…”

Senator McCain: “It made no reference to gaming. Thanks Mr. Chairman.”

Chairman Tester: “That’s ok. Assistant Secretary Washburn, ah, some of the witnesses’ testimony that we’re going to hear today talks about possible violations of the Arizona tribal compacts whether by the TO project itself or by possible repercussions if the TO project is allowed to proceed. What role does the department play in instances where the tribe or the state violates provisions of the compact?”

Secretary Washburn: “Well, first of all, we approve those compacts. So we stamped approval on those compacts and those compacts, umm, would be violated by this statute and again, would change, again, the terms of those compacts. And so, there are potential provisions for violations of gaming compacts. Umm, I’m not sure what the steps would be for the United States to take for those violations. Umm, but one of the compact’s, umm, terms was that this compact, the final agreement for the parties on these issues and introducing new terms after everybody agreed that, umm, they’ve agreed on all the terms is definitely a change in the promise.”

Chairman Tester: “Ok. Do you have any more questions Senator McCain? Alright, thank you Secretary Washburn. Appreciate taking time out of your schedule to be here today. We’ll give the staff, ah, a moment, ah, to reset the witness table. (Pause) And the witnesses can come up. At this time. (Pause) I, ah, want to welcome our second panel of up to the witness table. We will first hear from Governor Gregory Mendoza of the Gila River – Pima – Maricopa Community. Then we’ll turn it over to Mayor Jerry Weiers. Got it right this time. The City of Glendale. Welcome back, Mayor. Ah, we then will have Sammy Chavira, a Glendale City Councilman, and finally, we’re gonna hear from Ned Norris, Chairman of the Tohono O’odham Nation and we  welcome you back. (Pause)  Oh, Ok, in place of…oh, I’m sorry, alright. Gary, my apologies.  Umm, we’ll then hear from Gary Sherwood, Glendale Councilman. Same position, different person. Umm, and finally we’re gonna 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. Ah, Governor Mendoza, we’ll start with you. Go ahead.”

© Joyce Clark, 2014


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