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Joyce Clark Unfiltered

For "the rest of the story"

On May 27, 2014 the Supreme Court issued a ruling on a tribal immunity case, Michigan v. Bay Mills Indian Community. Here is the link to their decision: http://www.scotusblog.com/case-files/cases/michigan-v-bay-mills-indian-community/

It was a narrow case with a decision rendered on one specific issue. In a five to four decision the Supreme Court held that Michigan’s lawsuit against the Bay Mills Indian Community to stop a tribal casino operating outside of Indian lands was barred by tribal sovereign immunity.

Its decision appears be limited to the specific facts involved in this case.  Tribes that rely on this decision to engage in off-reservation commercial activity now know that they may not be able to rely on the Bay Mills decision for broad immunity, especially if an aggrieved plaintiff has no other remedies available. 

The decision reinforces the loophole that states can sue tribes for illegal gaming activity on Indian land but they can’t sue them for the same activity on off-Indian lands. Whether and how this decision applies to principles of tribal sovereignty involving future off-reservation commercial activities remains open, and one area that the Court purposefully left open.  Indian Tribes throughout the country did not gain an outright win with the Court’s opinion.

Michigan remains able to deny a license for an off-reservation casino. If the tribe went ahead with the project anyway, Michigan still retains the right to sue tribal officials to stop the gaming activity and, if necessary, invoke its criminal laws.  In addition, any state can still seek a waiver to allow lawsuits for off-reservation gaming activity as part of their compact with a tribe regarding on-reservation gaming.

This decision does not speak to the unique Arizona v. Tohono O’odham situation. It’s effect upon current litigation is questionable at best. In other words, this decision does nothing to advance or deny either side’s position on the proposed casino in Glendale. It is still expected that Rep. Trent Franks’ bill, HB 1410, will be voted up or down in the US Senate this summer.

© Joyce Clark, 2014

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This site contains copyrighted material the use of which is in accordance with Title 17 U.S. C., Section 107. The material on this site is distributed without profit to those who have not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democratic, scientific and social justice issues, etc. We believe this constitutes a ‘fair use’ of any such copyrighted material as provided for in Section 107 of the US Copyright Law and who have expressed a prior interest in receiving the included information for research and educational purposes. For more information go to http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond ‘fair use,’ you must obtain permission from the copyright owner.

Lately I have been in a “take no prisoners mode.” Think of Peter Finch as Mr. Beale in the film, Network, when he screams, “I’m mad as hell and not going to take it anymore!” I am thoroughly disgusted with the lies and subterfuge offered on various Glendale issues masked in a guise of altruism and high-mindedness. Rather than advancing issues that serve the best interests of our community opinions and actions have degenerated into advocacy of personal agendas. Yes, I know “we all do it” and “it’s done all the time,” usually accompanied by an admonishment to be “realistic.” It’s time to call “a spade,” “a spade” and not the PC description of, “a hand-held implement with a sharp-edged, rectangular, metal blade and a long handle used to loosen or break up the upper strata of the earth.”

The Glendale Star is a perfect example. Newspapers once had the reputation of objectivity in their reportage. Like many other time honored values news objectivity has fallen by the wayside.  When it comes to the proposed Tohono O’odham casino the Glendale Star obviously supports it. It is no secret that its Editor, Carolyn Dryer, attended an Alvarez hosted pro-casino meeting as a like-minded individual. There were also TO representatives in attendance. Her editorial choices seem to clearly reflect her bias.

There is a referendum petition in circulation designed to put the recent council vote to reject US Representative Trent Franks’ HB 1410 on Glendale’s fall ballot. By the way, if HB 1410 successfully passes in the US Senate the TO’s proposed casino will die a righteous death. The defeat or passage of HB 1410 is more critical than the public realizes. Make no mistake. If HB 1410 passes there is sure to be more litigation.

The referendum effort is being led by Glendale resident Gary Hirsch, a former city council candidate. Mr. Hirsch’s position is well known as one of the Glendale citizen plaintiffs in a previous lawsuit against the Tohono O’odham’s (TO) proposed casino.

On April 24, 2014 the Glendale Star Editor Dryer published an opinion piece on the casino referendum issue written by Mike Kenny, its Web Editor. Here is the link: http://www.glendalestar.com/opinion/editorials/. Mr. Kenny’s opinion piece is a puff piece signifying “nothing.” I guess if one cannot speak to the issue the next best course of action is to denigrate it.  He refers to the referendum effort and characterizes it as achieving “nothing.” He goes on to say, “Oh, and it’s (council vote) a non-stance that likely has zero implications. It’s highly doubtful our nation’s Senate – if this bill is ever heard – will take into account the opinion of a city that can barely decide what its opinion is.” Really? If that were the case why did Councilmember Alvarez and her minions work so hard to bring it to a council vote? They believe that rejection of HB 1410 by the city in which the proposed casino would be sited would indeed send a strong signal.

What about other personal agendas on this issue? Those councilmembers who hold a pro-casino position appear to have done so for purely personal reasons not because they believe it is in the best interest of Glendale (although they will proclaim so loudly and often). Councilmember Alvarez seems to be in “pay-back” mode. It’s her way of sticking it to councilmembers who she perceives as having “disrespected” her when she first came on board. It’s purely personal and the TO have taken advantage of her vindictiveness. Councilmember Chavira owes Alvarez and the TO big time for their support and endorsement of his candidacy. It appears that their bill has come due and he is making good on his debt. Councilmember Hugh’s pro-casino stance is in contradiction to his usual fiscal conservatism. It’s been heard his wife is driving his pro-casino stance. Water cooler opinion has it that Councilmember Sherwood who ran as an anti-casino council candidate lusts to become Glendale’s next mayor and is expecting substantial financial support from the TO in his run for that office.

So much for decision making in the best interests of already beleaguered city. After all, it’s just politics. Isn’t it time for Glendale residents to say, “They’re mad as hell, and not going to take it anymore?”

© Joyce Clark, 2014

FAIR USE NOTICE

This site contains copyrighted material the use of which is in accordance with Title 17 U.S. C., Section 107. The material on this site is distributed without profit to those who have not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democratic, scientific and social justice issues, etc. We believe this constitutes a ‘fair use’ of any such copyrighted material as provided for in Section 107 of the US Copyright Law and who have expressed a prior interest in receiving the included information for research and educational purposes. For more information go to http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond ‘fair use,’ you must obtain permission from the copyright owner.

Recently the Arizona Republic started a new item, West Valley Sound Off. They are contacting West Valley elected to get their positions on issues of the day. Their first foray question was, “Do you support the development of this proposed casino? Why or why not?” Those from Avondale, Buckeye, Goodyear, El Mirage, Litchfield Park, Peoria, Surprise, Tolleson and Youngtown declined to answer. Not so with our brave, intrepid leaders in Glendale. Three of them did respond.

Councilmember Manny Martinez has consistently opposed the casino since it was first proposed in 2009. He gets it. He said, “I do not support the proposed Tohono O’odham reservation and casino. I am very concerned for Westgate’s well-being if the casino is opened. How do casinos attract customers? Cheap booze, cheap food, and the cost of rooms are minimal. At Westgate, we have hotels and restaurants that pay taxes and help us pay off our debts. If the reservation and casino come in, as a sovereign nation, they would pay no federal, state, county or city taxes. Governor William R. Rhodes of the Gila River Indian Community said, ‘We believe the Tohono O’odham Nation, with the assistance of the federal government, has disrespected the rule of law, the balance so carefully struck among Indian gaming tribes, our community, Glendale and every Arizonan.”

Then we have words, signifying nothing, from Councilmember Chavira. He doesn’t get it and he is not representing the majority sentiment of the residents of West Glendale and the Yucca district, who will feel the direct impacts of the proposed casino. He mimics the same, old, tired rhetoric that the Tohono O’odham have used ad nausea, “Yes, I do support the development of the proposed West Valley casino and resort. The benefits of the development will be significant not only for Glendale, but for the entire West Valley. Positive economic impacts such as job creation and an additional tourist attraction in our sports and entertainment district are among the benefits.” I’m sure he knows, uhmmm, well, perhaps he knows…that 25% of the jobs must be filled with Native Americans.

Lastly, Councilmember Sherwood responded. This is a guy who, less than two years ago, ran on a platform of opposition to the casino. Now, not so much. He did a flip-flop at a very recent council meeting voting with Councilmembers Hugh, Alvarez and Chavira to reject U.S. Representative Franks’ HB 1410 and to begin negotiations with the Tohono O’odham (TO). Many suspect his affirmative vote was pay back to Chavira for Chavira’s vote in support of the arena management deal. “Neither – I will support the project if the Tohono O’odham Nation can be treated as close to a private entity as possible and having some form of revenue stream into the city’s general fund. Additionally, infrastructure including any street improvements, public-safety agreements, et al. would have to be included and enforceable in federal courts. Thus far, in fact-finding sessions, the Nation appears to be very amenable to this. Businesses such as Westgate, Renaissance Hotel, Coyotes and Tanger Outlets, to name a few, are also in support of proposed project. The sports and entertainment district could very well capitalize on a project of this size if it meets the city’s criteria.” He appears to be back-pedaling as he straddles a very narrow  fence, by adding his list of caveats. His declaration that,” Westgate, Renaissance Hotel, Coyotes and Tanger Outlets…are also in support” is downright laughable. There has never been a declaration of public support for the proposed casino from these entities. Have you seen it? I haven’t. Remember when the possibility of losing the Coyotes as an anchor tenant at the arena loomed? Bar and restaurant owners were beside themselves and declared without 40 nights of hockey games they couldn’t make it. They are not going to support a casino that will draw customers away from them knowing that potential consumers will spend disposable income on gambling, subsidized meals and booze and cheap room rates. If they are so willing to commit financial suicide, let’s see them do it publicly. Not one representative of these entities went to the last council meeting when TO negotiations was on the agenda and expressed public support of the project. Sherwood had no public letters of support from these entities that he could read into the record that evening. It’s time for Sherwood to cease making declarations that may not be accurate. Just because he said it, doesn’t make it true.

© Joyce Clark, 2014

FAIR USE NOTICE

This site contains copyrighted material the use of which is in accordance with Title 17 U.S. C., Section 107. The material on this site is distributed without profit to those who have not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democratic, scientific and social justice issues, etc. We believe this constitutes a ‘fair use’ of any such copyrighted material as provided for in Section 107 of the US Copyright Law and who have expressed a prior interest in receiving the included information for research and educational purposes. For more information go to http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond ‘fair use,’ you must obtain permission from the copyright owner.

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