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Joyce Clark Unfiltered

For "the rest of the story"

Councilmember Gary Sherwood has done it again. On September 17, 2014 he appeared before the Senate Committee on Indian Affairs hearing on Senate Bill 2670. The bill, if approved by the Senate, would have the effect of stopping the Tohono O’odham from building a casino in Glendale.

Please note that the panel members were not sworn in. It is the usual practice in any Congressional hearing and one wonders why it was not done this time. In his oral testimony Sherwood said, “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.”

It appears that his statement is not true. In fact, the Cardinals have sent a letter to the Chair of the Committee, Senator Jon Tester, as well as the Vice Chair Senator Barrasso, Senator John McCain, Senator Jeff Flake, Mayor Jerry Weiers and all members of the Glendale City Council, categorically stating that they do not support the casino project.  The Arizona Coyotes released a public statement indicating that they have never expressed support for the casino project.

Looks like Sherwood was shooting from the hip…err…his lips…again. Sherwood is on a personal path of self destruction with a history of public statements that have all but destroyed his credibility. No wonder the people of the Sahuaro district, which he represents, seem all too willing to sign a recall petition against him.

On a separate but another questionable note, a blog reader contacted me and asked if Jamie Aldama has the home he owns in the Yucca district registered as a rental property with the City of Glendale and if he is paying monthly rental property tax to the city. I have no answer and the city maintains no online listing of rental properties. I suggest the Ocotillo voters go to the source and ask Mr. Aldama. It begs yet another question. Why is Jamie Aldama still sitting on the citizen’s Planning and Zoning Commission representing the Yucca district if he doesn’t live there and is running as a candidate for the Ocotillo council seat? Councilmember Chavira (Yucca district) should have replaced him when Aldama announced for Ocotillo. Why didn’t he? Perhaps he was just lazy and didn’t want to deal with the hassle of finding a replacement or perhaps he thought he was giving Aldama greater credibility as an Ocotillo district candidate with Planning and Zoning credentials. There’s no love lost between Chavira and Alvarez. She supported him a lot…I mean tons… in his run for his council seat only to be double crossed by him when Chavira voted for the arena management agreement. Alvarez was counting on him to be the fourth vote that would kill the deal. This kind of politics is certainly not for the faint hearted.

© 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.

On September 17, 2014 the Senate Committee on Indian Affairs took testimony on Senate Bill 2670 introduced by Senators McCain and Flake. In previous blogs, Part I and Part II, I offered verbatim transcripts of the testimonies of Department of the Interior Assistant Secretary for Indian Affairs Kevin Washburn, Gila River Governor Gregory Mendoza and Glendale Mayor Jerry Weiers. Today the verbatim testimony is that of Glendale Councilmember Gary Sherwood and Tohono O’odham Chairman Ned Norris, Jr.

Actually Councilmember Sammy Chavira was slated to testify. Why didn’t that happen? Have you ever noticed that the Sherwood-Chavira pairing is eerily similar to Mutt and Jeff? I’ll leave you to figure out who is Mutt and who is Jeff. At the last minute, at the hearing table in fact, Sammy was bumped and Sherwood took over as self proclaimed representative of Glendale’s majority council position on the issue.

Many have asked who pays for these trips to Washington, D.C. The answer is easy. You do – the taxpayers of Glendale. Each councilmember has 2 budgets: one for “communication” and one for “infrastructure.” These budgets total an annual $30,000. It is from these budgets that a councilmember’s trips are paid.

Sherwood’s testimony was a combination of rhetoric and fantasy. He delivered facts that can only be characterized as misinformation. He said, “…88% of the wage earners who live in our community must travel elsewhere to work.” According to http://www.citydata.com/city/Glendale-Arizona.html#ixzz3Ej8KFaU3 workers who live and work in Glendale number 25,039 (23.6%). He went on to say, “I was stunned to learn that the prior Glendale administration had failed to make any effort to learn more about this proposal before it rushed to oppose it.” Wrong again. City administrative personnel were directed by council in 2009 to meet with the Tohono O’odham (TO). That meeting as well as subsequent meetings did not go well. The TO were arrogant telling city staffers that the casino was coming and there was nothing the city could do about it. The only information they were willing to share were the same conceptuals of the project they had released publicly. So much for the TO’s willingness to share specific information with the city. Sherwood then went on to say,“ 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.” Who is this ‘we’? Despite his rhetoric the businesses, especially the sports teams, are not supportive of the casino. Why should they be? The casino will siphon off discretionary dollars from those who usually attend their games. Councilmember Sherwood, show us the money, or rather some letters from these businesses attesting to their support of direct, unfair competition. We’d all like to see those.

Tohono O’odham Chairman Ned Norris used a combination of sheer arrogance and threat in his testimony. He admonished all entities but most specifically sister Tribes in Arizona by saying, “…we ask these tribes to carefully consider the damage their efforts are causing…” He, once again, made reference to the Nation’s poverty status, “…our population is one of the poorest in the United States with average, individual incomes just over $8,000.” What are the Nation’s leaders doing with the $36 million earned by its existent 3 casinos annually? He referred to their back room deals as misinformation and said they had been litigated. How? The TO has consistently refused to waive “sovereign immunity” in court proceedings.  He also verbally stamped his feet and said if they didn’t get their casino it would be a “profound injustice.” What about the “profound injustice” the TO have caused to Glendale, its sister Tribes and the state of Arizona?

The last blog in this series will wrap up with questions posed to the panel by Chairman Tester and Senator McCain. It is certainly interesting. Below is the verbatim testimony of Councilmember Sherwood and Chairman Norris:

Chairman Tester: “Councilman Sherwood.”

Councilmember Sherwood: “Good afternoon Chairman Tester and members of Senate Indian Affairs Committee. My name is Gary Sherwood and I am the councilmember of the city of Glendale, Arizona. On behalf of Glendale I am here today with my fellow councilmember and colleague, Sammy Chavira. We are pleased to have 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 this opposition and these resolutions have been provided to the committee. In this opposition to 2670 and House Bill 1410 we have been 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 Nation’s casino and resort project bring to our area. In Glendale alone, nearly 80,000 of the nearly 90,000 workers who live in Glendale must leave the city for their employment. In other words, 88% 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 twenty years 65% of the growth of the Phoenix Metropolitan area will occur in the West Valley.

“Existing casinos in the Phoenix area are over whelmingly concentrated in the East Valley and the West Valley Resort will be over twenty 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 council in 2012, I knew we had to do our homework on a project like this. I was stunned to learn that the prior Glendale administration had failed to make any effort to learn more about this proposal 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 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 Glendale City Council including Mayor Weiers continue to maintain that there’s no opposition to this project. But as President Reagan once said, ‘facts are stubborn things.’ Facts show that we have 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 on rebuffed the Nation’s efforts to forge a mutually beneficial relationship.

“I am glad that now the city has opened a new chapter with the Nation and has entered into an agreement that will bring thousands of jobs and millions of dollars of direct benefits 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 ground breaking ceremony with Chairman Norris, members of the 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 Councilman 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 support of Glendale residents who in poll after poll expressed overwhelming support for this West Valley Resort the 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 to challenge the city’s agreement with the Nation. As been widely reported to the press these paid signature gatherers have been caught on tape lying to Glendale voters suggesting that the petitions are 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 this bill is more properly titled ‘keeping the profits after 2014.’

“For the broadest 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.

“Umm, Senator McCain, you did bring up a point, umm, about what this would do to other Phoenix area casinos. Again, a good share of the growth in the Valley of the Sun is gonna take place in the West Valley over the next twenty years and currently there are, of the seven casinos that are considered in the Phoenix Metro area six of ‘em are in the far East Valley with the one being a little over twenty miles away. So I really don’t think that’s gonna be a concern.

“Thank you for this opportunity to testify in this matter. I, and Councilman Chavira, will be pleased to answer any questions that you may have.”

Chairman Tester: “Thank you Councilman Sherwood. Ah, Chairman Norris.”

Chairman Norris: “Chairman Tester, Senator McCain, and honorable members of the committee, Good Afternoon. This is now the fourth time that I’ve had, that I’ve 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 court and the administrative agencies which in sixteen 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 and 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 Regulatory Gaming Act which explicitly allows settlement lands to be used for gaming and our tribal state gaming 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 the backroom deals and secret plans. These arguments have been litigated and rejected by the courts. Here are the facts. Not only is the Gila Bend Act a public law that was the subject of extensive hearings in the 1980s. This 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 its settlement land in Maricopa County it also explicitly prohibits outside agreements which would change the compact terms. Our sister tribes have long benefitted from the advice of numerous experienced attorneys. The idea that these tribes had 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 and our shared history is vitally important to the Nation but these tribes continued assaults has taken a toll and 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. Embrace the promises made by the United States and the Indian Water Rights Settlement. It unilaterally amends the negotiated terms of federally approved tribal state gaming compact. 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.”

Chairman Tester: “Thank you, Chairman Norris, for your testimony. Thank you all for your testimonies. Senator McCain.”

© 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.

On September 17, 2014 the Senate Committee on Indian Affairs took testimony on S. 2670, a bill introduced by Senators McCain and Flake. It is designed to prevent the Tohono O’odham from building a casino in Glendale until 2027 when the current state-Indian gaming compact expires.

Because there is a lot of testimony I have broken it into segments. This portion is the testimony of Governor Gregory Mendoza, Chairman of the Gila River Indian Community and Mayor of Glendale Jerry Weiers. It is evident from Mendoza’s testimony that the 16 other tribes that are part of the gaming compact feel betrayed and are very bitter about the actions of the Tohono O’odham (TO). The reason that Governor Mendoza of the Gila River Indian Community and President Diane Enos of the Salt River-Pima-Maricopa Indian Community have taken the lead in opposing the TO’s project is that these two tribes have the resources to do so. They have the support of the other Arizona tribes.

Mayor Jerry Weiers highlighted Proposition 202, the Arizona Gaming Compact, and distributed to members of the committee copies of the original publicity pamphlet distributed to voters in 2002. What is ironical is that the pamphlet used, that promised no new casinos in the Phoenix Metropolitan area was paid for by the Tohono O’odham.

Both men spoke of possible consequences should the TO prevail. Governor Mendoza spoke of the harm that will befall rural tribes and Mayor Weiers spoke of action that could be taken by the Arizona legislature to open up the entire state to non-Indian gaming.

The actions of the Tohono O’odham stink on so many levels:

  • They don’t care that they have destroyed the deep-seated, long-term trust they enjoyed with their sister Arizona tribes.
  • They don’t care that they broke their word and their commitment to keep new casinos out of the Phoenix Metropolitan area.
  • They don’t care if they destroy, single-handedly, the voter approved state gaming compact.
  • They don’t care if their casino is across the street from a high school and becomes a magnet for curious teenagers.
  • They don’t care if they destroy the fabric of neighborhoods with greater 24/7 traffic and spill over crime.
  • They don’t care if the state legislature opens the state up to non-Indian gaming.
  • They don’t care if rural Indian tribes suffer.

Their actions are nothing short of Machiavellian, “the ends justify the means.” Their only concern appears to be enriching themselves at the expense of all around them. They have 3 casinos in the Tucson area estimated to earn $36 million annually. I guess that’s just not enough for them. If they succeed in building the casino the unintended consequences will be felt for many years to come. But that’s OK – as long as they get what they want.

Below is the verbatim transcript of the testimonies of Governor Mendoza and Mayor Weiers:

Governor 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 Tohono 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’s 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 Tohono O’odham when we gave up our rights in 2002. While we agreed the Tohono O’odham should get replacement lands under the 1986 law we also strongly believed that Tohono O’odham must abide by the promise and commitments they made to us. In 2002 Arizona tribes had to get approval for 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 to win voter approval they also were secretly plotting to build a casino in Phoenix. That casino will be located right across the street from a high school and it’s 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 limit 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 assure 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’re 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 the 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 dollars 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 in 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 in cities. We have come to Congress because you’re 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 that they take the land into trust for the Tohono O’odham.

“This bill does not set bad 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 narrowly restricts gaming on the land until 2027 but does not eliminate the uses of the land and 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.”

Chairman Tester: “Thank you, Governor. Uh, Welcome Mayor Weiers and I would ask you to try to keep it to five minutes because the Senator has another meeting to get to and I want to get to him for questions.”

Mayor Weiers: “I’ll do the best that I can, Sir. Thank you very much. Good afternoon, Chairman Tester, Vice Chairman Brasher 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 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 and my views are not the official position of the council.

“Like Senator McCain I supported Arizona Proposition 202, the 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 Hull concluded compact negotiations in 2002 with the seventeen tribes she publicly announced that under the compact that there would be, and I quote, ‘no additional casinos in the metropolitan Phoenix area.’ Now here’s a voter pamphlet from the 2002 initiative campaign. It was widely distributed by the seventeen tribes. The pamphlet told voters that under the compact and I quote, ‘There will be no facilities in Phoenix.’ If you look at page six, which I’ve got highlighted here, ah, major funding for this pamphlet was provided by the Tohono O’odham Nation, that I will respectfully refer to as the TO.

“Understandably the public was blind sided when the TO announced in January of 2009 that it was going to open a Las Vegas style casino on a 54 acre parcel within our city. At that time I was serving in the Arizona legislature and I met with TO Chairman Norris and I expressed my grave concerns with gambling within our city. The council immediately passed a resolution opposing the casino because it would harm our residents and our way of life.

“Recently the city council voted 4 to 3 repeal the 2009 resolution opposing that casino. But this was done only after the Interior Department had already decided to grant 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’s frustrating to be a city of our size and have no voice on gambling pushed by a tribal government that’s more than a hundred miles away. The public has no right to object to gambling because of the narrow exception in the 1988 Indian Regulatory Gaming Act the TO is using, and gives Interior absolutely no authority to stop gambling even if it knows the adverse impact to nearby neighborhoods, churches and a 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 the 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’s more, for gambling to be allowed, the Secretary must determine on the record, and I quote, ‘would not be detrimental to the surrounding community.’ And most importantly, the state’s governor has the 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 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’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 that it can create new reservation land on more than 6,000 acres. They also claim 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 councilmembers have signed a letter asking the Congress to 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 by tribes to voters protecting Phoenix metro cities from having unwanted gambling within their borders. Thank you, Mr. Tester. I’ll be happy to answer any questions.”

Chairman Tester: “Thank you Mayor Weiers.

© 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.

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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