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Joyce Clark Unfiltered

For "the rest of the story"

Apparently Governor Doug Ducey has no problem throwing the City of Glendale under the bus. Recently he offered a settlement to the Tohono O’odham. Here is a link to Howard Fischer’s Capitol Times story: http://tucson.com/news/local/tohono-o-odham-say-proposed-casino-deal-not-likely-acceptable/article_da14a03a-e2b5-5fde-aa95-87519314c89c.html . In return for the state’s recognition of the Glendale casino as well as the state’s allowance of full Class III gaming at the Glendale casino the Governor wants the tribe in essence to promise not to build any other casinos in the metropolitan areas of  Phoenix and to limit gaming to the TO tribal land that existed in 2003. Gee, as a Glendale resident, I want to say, “Thank you, Governor.” The deal, in order to obtain buy-in from the other tribes, gives the tribes an increase gaming operations which means increased revenue for them.

The Tohono O’odham (TO) is reluctant to agree. They are betting that Judge Campbell, who is scheduled to hear arguments in mid-December on the TO’s lawsuit to compel the state to grant it Class III gaming, will rule in their favor. The TO assumes it will win this lawsuit and get Class III gaming in Glendale. The TO’s anticipated win of this current law suit allows them to retain the legal option to open casinos elsewhere in the Phoenix metro area.

A little refresher on history is needed. In 2002, the voters of the state approved a Gaming Compact between all tribes and the state for the purpose of gaming regulation at tribal casinos. The 2002 deal gave the tribes the exclusive right to conduct casino gaming in Arizona and was sold to voters on the promise that gambling would be restricted to existing reservations and that there would be no new casinos in the Phoenix area.

In the meantime, the TO, while actively encouraging voters to support the 2002 gaming compact, were already planning on breaching it. Prior to 2002 they were secretly and actively seeking land for the purpose of planting a casino in Maricopa County. Their original consideration was to purchase land in or around Buckeye. Buckeye dodged the bullet when the TO’s consultant opined that the site was too distant from the major urban centers of Phoenix. They settled on a county island in Glendale, close to city’s newly announced (in 2002) Westgate site as an entertainment district. They bought the land under a shell company and for seven years they kept it secret while Glendale invested millions of dollars into the development of Westgate. On the day in 2009, when they made their public announcement of their intent to build a casino in Glendale, they marched into city hall and in essence told the city they were coming and there was not a darned thing it could do about it.

For years, Glendale and the Salt River-Pima-Maricopa tribe and the Gila River tribe brought lawsuits against the Tohono O’odham. It has only been lately that Glendale’s city council dropped its opposition to the TO casino in return for 30 pieces of silver.

Here is the Arizona Republic’s latest editorial on the issue: http://www.azcentral.com/story/opinion/editorial/2016/11/30/tribal-gaming-settlement/94698276/ .

Everyone , to this day, believes the TO’s West Valley casino was a breach of the spirit of the 2002 agreement with voters that created the plan for limited tribal gaming. The tribes believe the TO breached their trust. Over the past 8 years the TO has created controversy, innumerable legal battles, enormous cost and a great deal of distrust regarding its word to its sister tribes and the voters of the state.

The TO’s response has been to say that it wants to consider all proposals using the Arizona Indian Gaming Association (AIGA). Here’s the rub. The Gila River Indian Community and the Salt River-Pima-Maricopa Indian Community resigned from the AIGA in May, 2016, saying, “actions of the Tohono O’odham Nation to secretly develop a casino in direct opposition to the promises made by AIGA and other tribes has destroyed AIGA’s unity and undermined the principles of the organization.” Obviously the TO’s suggestion is not going to happen but it certainly provides the TO with convenient cover.

What to make of this latest volley? It is clear that no one on this planet trusts the Tohono O’odham’s word.  The only reason the state is willing to grant the long-coveted Class III gambling license is because Governor Ducey wants a signed, legal document  (promise) from the TO that they will not build any more casinos in the greater Phoenix metro area. The TO’s word is worth nothing and their signature on a contract may not be worth much more (do you see future law suits?).

In the meantime the TO wants its cake and to eat it too. They are cocky. They’ve won nearly every law suit. They have convinced themselves they will win this latest one. If they do, they will get their Class III gaming without having to promise anyone that they will not build more casinos in Maricopa County. Uh, oh, watch out Mesa, Scottsdale, Tempe, et. al. A Tohono O’odham casino planted in your town may be in your future! Can anyone say, “Las Vegas?”

© Joyce Clark, 2016        


This site contains copyrighted material the use of which is in accordance with Title 17 U.S. C., Section 107. The ‘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 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 material. 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.

September 17, 2014 the Senate Committee on Indian Affairs held a hearing on Senate Bill 2670 introduced by Senators McCain and Flake. I have offered the direct testimonies of the  panelists, Assistant Secretary Kevin Washburn; Governor of the Gila River Indian Community Gregory Mendoza; Glendale Mayor Jerry Weiers; Glendale Councilmember Gary Sherwood and Tohono O’odham Nation Chairman Ned Norris, Jr. Each of the panelists was asked questions by Senators McCain and Tester.

I have never heard so many non-responsive answers in my life. It’s as if the questioner and the person answering were on parallel universes. Isn’t that the mark of a true politician? If so, they all passed the test. The only person to answer a question directly was the Attorney for the Gila River Indian Community, Allison Benney (my apology if I have slaughtered her name).

Sherwood, in his answers to Senators McCain and Tester, pumps out a great deal of misinformation. His reference to one 30 minute conversation between Glendale staff and the TO…wrong. His estimate of jobs created…wrong. There was one very telling revelation however. The city’s position on the referendum petitions submitted in opposition to the TO/Glendale Settlement Agreement et. al., relies exclusively on the argument that council votes were administrative not legislative. Gary Sherwood, went off script (which he does quite frequently). At the 43 minute, 46 second mark of the hearing he refers to the council votes as legislation (in a convoluted way). In his mind, he recognized that those council votes were legislative… Oh Oh. I hope the attorneys take note.

I also stand corrected on the amount of annual revenue the Tohono O’odham (TO) earn from their 3 casinos. I had used $38 million. Well, you can nearly double that. The figure that Senator McCain used was $68.2 million. No matter the number…no matter whether that is net revenue or gross revenue that is still a lot of money. Again, what have the TO been spending all of that revenue on? Too bad no one is allowed to audit their books…they are a sovereign nation, you know.

Chairman Norris downright refused to verify or disqualify the annual revenue figure Senator McCain used. He kinda, sorta answered Chairman Tester’s question. The only relevant fact he could come up with was the $5 million dollar scholarship fund before he began ranting about the use of the Border Patrol agents’ use of TO roads.

Miss Binney, on the other hand, offered some startling testimony when she said they had hand written notes in their possession describing discussion of a possible closure of the 3 TO casinos in Southern Arizona and a move to rebuild and reopen them in the Phoenix area.

The last portion of testimony from the hearing is below:

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

Senator McCain: “Thank you, Chairman. Ah, Chairman Norris, would you like to, for the record, supply the, ah, the amount of money, the revenue that your casinos have gained for the tribe on an annual basis?”

Chairman Norris: “I’ll be happy to give that some consideration but I will not do that without the express umm, umm, authorization of my legislative council.”

Senator McCain: “So, what ah, tell us how impoverished you are. I will provide for the record, Mr. Chairman, hearings that Senator Inouye and I had, including that with Attorneys General, especially in states that came and testified before our committee, where their great concerns were what would happen, is happening exactly now. That was one of the reasons why we had great difficulty getting the support of Governors and Attorneys General because they said, ‘if we don’t look out we’re going to have Indian gaming operations in the middle of our towns and cities.’ So, I would be glad to provide the record of hearings and the conclusions and statements that Senator Inouye and I made at the time of the passage of the Indian Gaming Regulatory Act, um, which clearly was designed to prevent a non-contiguous, middle-of-a-metropolitan area, Indian gaming operation for which the people have, ah, maybe their elected representatives have, maybe some like Mr. Sherwood who changed their mind over time. Umm, but they have not been able to make their will known as far as a very significant impact in not only Glendale but in the entire West Side. So, Mr. Sherwood, out of curiosity I think you used to be very much opposed. You even wrote articles in opposition to this. What changed your mind?

Councilmember Sherwood: “Ah, thank you for the question, ah, Chair and Senator McCain. Umm, when I campaigned I had campaigned against this proposed based on information I had and I had read deal…quite a bit of information on it. Umm, the thing that was distressing to me though, that in the very beginning there was a half hour conversation when the city first found out about it in April of 2009 and that was the only conversation the previous administration had and I was, was always quite upset by the fact that we didn’t have the dialogue. We weren’t very doin’ very good in the courts. So when umm, we ah, after the new council got seated in January ’13 and we, ah, took care of the hockey situation we turned our attention to the casino issue which again, had been laboring for five years and started havin’ that informal dialogue and learned quite a bit more about the project from the fact that it could benefit us umm, in many more ways than what the gaming compact even called out for. So, those informal discussions led into, ah, formal fact finding in the November time frame which led to negotiations in March. Umm, and, and having gone through that and having voted on this a couple months ago to approve the project and to ah, equivocally set ourselves against this legislation (43:46) umm, and the benefits, certainly after talkin’ to other developers, I mean we’ve had several developers come to us uh, since this casino project was announced wanting to develop on Glendale, on land in Glendale city proper.”

Senator McCain: Well, thank you. Chairman Norris, I have before me information that, ah, I’m not sure where it came from but it alleges that your annual revenue from gaming is  $68,200,000. Is that in the ballpark?”

Chairman Norris: “Chairman, Senator McCain, as I stated before without the authorization of my legislative council I’m not at this point, ah, able to disclose, to agree or disagree with your information.”

Senator McCain: “So you refuse to tell this committee who is expected to support your effort to establish a casino and you won’t even tell me whether this is a correct or incorrect number, $68,200,000?

Chairman Norris: “Mr. Chairman, Senator McCain, the courts have already made that determination on whether or not the Nation is within its legal right to be able to establish…and our current compact also authorizes it as well.”

Senator McCain: “I asked…that’s not in response to the question I asked Mr. Chairman. You refuse to give, to authenticate or disagree with roughly $68,200,000 in revenue for a year, ah, for your Nation?”

Chairman Norris: “Mr. Chairman…”

Senator McCain: “Is that correct? You do not wish to give that information? Either agree or disagree. “

Chairman Norris: “Mr. Chairman, Senator McCain, I am not agreeing or disagreeing. What I’m saying…”

Senator McCain: “Actually what you’ve done is refuse to answer questions before this committee. I’m not sure why you came. Ah, Mr. Mendoza, is there a concern, Chairman Mendoza, President Mendoza, is there a concern that there may be other loopholes such as this exploited and using this precedent to other casinos that would be established in the Valley?”

Governor Mendoza: “Mr. Chairman, Senator McCain, uh, thank you for that question. You know, umm, I’ve been hearing about this particular bill and it would create that particular precedence and in my mind, no. The act has been very consistent with Congressional precedents and umm, if you’ll allow me, I will allow my attorney here to offer some specifics. Miss Benney.”

Miss Benney: “Yes, thank you Senator McCain. So the concern that you have is a legitimate concern in that Tohono O’odham if they’re able to build this Glendale casino can actually shut down their other three casinos in the Tucson area and move them up to the Phoenix area basically using the same legal theory. That’s why the East Valley mayors are so concerned because they think the same thing that is happening in Glendale can happen in the East Valley and I think it was Congressman Gossar last time brought it back that showed 200 county islands in other parts of the Phoenix Valley where the same thing can happen. But more importantly, in the negotiations and during litigation, umm, hand written notes have come out from Tohono O’odham’s representatives basically indicating that they would do such a thing. They’re aware that they have that legal ability if they’re successful in Glendale to shut down the other three casinos and move them up to the Phoenix area. That’s one of the biggest concerns of the East Valley mayors.”

Senator McCain: “Well, Mayor Weiers, you find yourself in the minority here. Maybe you can tell us how that happened going from the majority to the minority on this issue. I’m sure it didn’t have anything to do with a $26 million dollar commitment over several years.”

Mayor Weiers: “Chairman, Senator McCain, I don’t actually know how I find myself in that position. I, you know, I’ve been ah, on one line of one thought, ah, ever since this issue came up when I was a state legislator. I know in our campaign, ah, that people have ran their campaigns, ah, stating certain views and certain beliefs and I guess I never really expected people to change their opinion but, ah, I don’t know exactly how we find ourselves here. You know the same facts, the same truths that were there two years ago are the same facts and truths today. Nothing’s changed. People’s opinions have changed and how they’ve changed their minds because of those truths and facts I don’t know. Sir, I really don’t know if that’s the question that maybe I should be asked but I’m not exactly sure how we came to that position.”

Senator McCain: “Thank you. Mr. Chairman, it bears repeating to all the witnesses in response to some of the statements. The Constitution calls for the Congress to have a special responsibility as far as Native Americans are concerned. It’s written in the Constitution. So although some may view this hearing and our action as being unwarranted interference it is a specific Constitutional responsibility of the Congress of the United States. Umm, so Mr. Chairman, this is a very busy week. We’ll be leaving tomorrow for quite awhile and you were kind enough to hold this hearing for me and I take that as a very special favor that you granted me and I wanted to express openly and repeatedly my appreciation for you doing this. I thank you, Mr. Chairman.”

Chairman Tester: “Well, thank you for those kind words, Senator McCain. We always appreciate your commitment to the Senate and to this committee and we thank you for your leadership on a number of issues including this one. I, um, have a few questions here. I’ll start with Governor Mendoza. Ah, Governor, when it comes to tribal gaming in Arizona being successful, could you talk about the kinda success Gila River has enjoyed, ah, because of gaming.

Governor Mendoza: “Thank you for that question, ah, Senator. You know Gila River does enjoy the benefits from our casinos. Ah, we’ve been able to fully fund for our students to go to college, any college in the world. We’ve been able to provide funding for our public safety, police, fire, umm, our emergency management program. We’ve been able to provide programs for our elders, our youth, housing, you name it. We’ve been able to do a lot for our community and again, we’re very thankful and blessed.”

Chairman Tester: “Well, I commend you on your commitment to your people and education, ah, is one of my priorities. You reference, when it comes to the expansion of gaming, you reference a commitment made by the Tribes in 2002 that there be no additional gaming facilities in the Phoenix area. In the current gaming compacts there’s specific limitation on the Tohono O’odhams from building a fourth facility in the Tucson area. If the parties thought enough to put a Tucson limitation expressly in the compact why wouldn’t the state include such a limitation around Phoenix? Any insight into that?”

Governor Mendoza: “Thank you Senator Tester. You know, Senator Tester, I’m not an attorney. I’ll allow my attorney to answer that.”

Chairman Tester: “Well Allison, I think it’s a good point that you’re not an attorney. I’m not either. So, Allison, since you are, have at it.”

Miss Binney: “So, I think there’s some, there’s a little bit of confusion. So in Arizona it’s different than in most other states. Most other states the governors can go and just negotiate a compact directly with the Tribes and enter into it. In Arizona that’s not the case. The governor had to get authority from the voters to enter into compacts and so the voters voted on a model compact that I actually have the Proposition that the voters had here. So Tohono O’odham does say here, like nowhere in the model compact or the compact does it say Tohono O’odham can’t go into Phoenix. I mean, number one there was no need to say that in the compact because no one ever thought that would happen; but two, in all the negotiations which are a key part of what this bill is trying to address Tohono O’odham specifically said their fourth casino would be in the Tucson area or in a rural area. They never once indicated that they would somehow go a hundred miles up to the Phoenix area. But I will say the Proposition that has the model compact that the voters actually saw when they voted to give the governor authority, there’s a chart in there and in the chart it shows the number of casinos that the Tribes in Arizona were authorized to build under the old compact and the number of casinos that the Tribes would be authorized to build under the new compact, the model compact that the voters were voting on. In the Phoenix area Tribes, all are shown as giving up a right to an additional facility that they had under the old compact. Tohono O’odham, because they’re not a Phoenix area Tribe, kept the same number of casinos, the right to build the same number of casinos. So Gila River is shown as giving up an additional casino, right to an additional casino. Salt River gave up the right to an additional casino. Ak Chin gave up the right to an additional casino. Fort McDowell gave up a right to an additional casino and so did Pasqua Yaqui. Tohono O’odham didn’t have to give up the right to an additional casino ‘cause they weren’t in the Phoenix area. So in our view, it is in the compact. Why else would these charts be in here showing that the Phoenix Tribes gave up rights to casinos and Tohono O’odham didn’t if it wasn’t intended that the whole goal of the compact was to limit the number of facilities in the Phoenix area?”

Chairman Tester: “Okay. Umm, if you don’t mind Allison, I wanna ask you another question. Umm, since you are an attorney and since you know the law and I say this in the most friendly way. When I talk to Chairman Norris and I think was referenced in one of your testimonies. Maybe it might have been Washburn’s testimony about breaking ground on a facility already. So ground has been broken. If we are to pass this bill would there be a takings issue?”

Miss Binney: “No and I thought it was interesting that Assistant Secretary Washburn didn’t address this issue at all. Because he was aware of it and Senator McCain asked him about it last time. And the fundamental reason why is because this bill just provides a temporary restriction on gaming activities on certain lands. That’s what IGRA does. The Indian Regulatory Gaming Act was passed to restrict gaming on Tribal lands. So, if this bill is a taking so is the Indian Regulatory Gaming Act and that’s been around for 25 years and that’s been upheld again and again and again.”

Chairman Tester: “So, in one point you’re talking about policy that prevents gaming activities to happen with IGRA. This is an actual, physical construction. You don’t see that there’s any difference there? And I ask this because I don’t know.”

Miss Binney: “Yeah, no. We, actually, when it came up in the last hearing, Senator McCain asked it, we actually went and did a thorough analysis because I will say, last Congress there was some legitimate concerns raised by Tohono O’odham and we addressed them in this new bill. But we looked at it and the other reason it’s not a takings is ‘cause Congress does these types of bills fairly frequently actually restricting gaming on lands and they can build a resort; they can build a new sports stadium. They can do economic activity…”

Chairman Tester: “Thank you. That’s fine. Thank you, Allison. Uh, Chairman Norris, ah, you’ve got a similar question that I just asked Governor Mendoza. You’ve got gaming facilities, umm, can you discuss what benefits you’ve got from these gaming facilities and while you’re in that vein could you also discuss unmet needs that are still out there by your Tribe?”

Chairman Norris: “Mr. Chairman, ah, I, too, am not an attorney. I am the elected chairman of my Nation and have an obligation to speak for my people.”

Chairman Tester: “Yes.”

Chairman Norris: “So I will do so. There are still third world conditions that exist in my tribal community and many tribal communities nationwide. The Nation has had an enormous amount of benefit in comparison to where we were at prior to gaming. We have been able to construct different facilities that were only dreams facilities, that we were needing within our communities to be able to provide the necessary services. We have been able to create a government of employees that are, that are able to provide the necessary services that many of our Nation’s members require. We have been able to provide scholarships to our, to our members. Prior to gaming we had probably less than 300 members that acquired masters, associates and doctors degrees and some law degrees. Today we have graduated more Tohono O’odham with those types of degrees this many years later and my council continues to allocate some $5 million dollars towards scholarship programs to our Nation. So we have had an enormous amount of benefit from the results of gaming but we still have those third world conditions that continue to exist. As far as unmet needs, Mr. Chairman, we know today that we have 500 families that are homeless on the Nation. We know today that there are many people within our communities that do need housing. We know today that much of the roads that are within our Tribal communities are being used and misused by the U.S. Border Patrol because of the influx of Border agents on our Nation, have really done wear and tear on our roads, and primarily BIA are on our roads. And so there’s a need for us to work hand in hand with the Department of Interior and Bureau of Indian Affairs to try and address the roads conditions that are so needing to be addressed, to be able to deliver the services, to be able to enter and to exit our Tribal communities nationwide. We have a reservation that is 2.1 million acres square. We have some 2.9 million acres in size. We have some 80 villages within that geographical area. The reservation is vast. The villages are remote. We’ve got homes that do not have running water. We’ve got homes that do not have electricity. So there’s a serious amount of unmet needs on my Tribal community.”

Chairman Tester: “Ah, thank you, Chairman. Mayor Weiers, umm, you’re a former state legislator. You’ve worked with city government as mayor and I think you understand the actual text of laws and contracts and the weight that carries with the weight that carries with those contracts and that text. In this case there was a specific limitation, correct me if I’m wrong, on TO developments around Tucson but not Phoenix. Umm, with that said, if this limitation on gaming around the Phoenix area was important, why was it not included in the contract or Prop 202?

Mayor Weiers: “Chairman Tester, all I can tell you is, is, is the knowledge that I have of talking to one of the authors, Senator McCain, and he had told me, point blank, that, uh, there was never, ever any intention in their mind that this would ever be an issue. And I don’t believe personally, quite honestly, that the average person, a non attorney person, would ever thought something like this. You know, uh, I guess that’s why we have attorneys to sit around and think of ways to get around stuff. But ah, I don’t believe anybody ever believed that this was going to be an issue and, and it is an issue. And, and quite honestly all this bill is trying to is just, let’s do what everybody said and thought we were gonna do and then when that compact’s over, renegotiate. Chances are we’ll probably end up with more casinos in the Valley. Most certainly.”

Chairman Tester: “Thanks, Mayor. Ah, Councilman Sherwood, ah, your testimony discusses the impacts that the agreement with TO would have on the city of Glendale. Ah, positive impacts. Umm, could you talk about those benefits of this development and while you’re on that, if there’s downside that comes to mind, could you talk about that too?”

Councilmember Sherwood: “Ah, thank you, Chair. Well, right off the bat, I can’t see of any downside in the negotiations, ah, in the settlement agreement that we concluded with the Tohono O’odhams in August. Ah, they’re covering existing infrastructure, new infrastructure, umm, water, umm, it’s not costin’ the city a penny. I mean, how often do you get a development where you don’t have to give in to anything? Umm, in terms of the development, we were hurt pretty hard with the down turn of our sports and entertainment. There was 8 funded projects that were to occur, south of the University of Phoenix Stadium where our Arizona Cardinals play. Umm, one of ‘em, umm, was Mr. Bidwill’s, ah, CB 101 Project before he started building. Those either went into litigation afterwards or the developers pulled back. Those are slowly comin’ back but not nearly the pace that was expected. So, our sports and entertainment area which has two professional sports teams, large entertainment area along with some retail, umm, was hurt vastly by that. And so when we have the mega events, like when we have the Super Bowl next February, umm, we don’t have anything to keep people in the area. So they go off into Scottsdale and Phoenix. Umm, a project like this resort will, umm, entice other development. In fact within, within weeks of us signing that agreement we had two major developers; one that had done a large scale project in Phoenix come through and they were only interested in us now because of this project and they were lookin’ at land within the city of Glendale to develop that would, ah, be real close to the sports and entertainment area. So, yes, we’re lookin’ at a lot of, ah, development activity that will directly benefit our city coffers and then again, on the deal that was referenced earlier about the $26 million or so, umm, that we get directly into the General Fund from the Tohono O’odhams. In fact we’ve already received a check for $500,000, ten days after the agreement was signed. Umm, that helps the city that has struggled as has been widely reported, umm, because of our past deals with some of the sporting facilities we have. It’s sorely helped our community.”

Chairman Tester: “Okay. Talk about jobs. How many jobs?”

Councilmember Sherwood: “The jobs, in terms of the operations, you’re gonna see 3,000 jobs, 1,500 of ‘em probably indirect. Ah, 15 direct in terms of construction jobs. It’s right now scheduled for three phases, the casino and then the attached resort and then probably year later, another resort based on how things are movin’ along. So you’re talkin’ thousands of construction jobs, ah, over this project that’s gonna take place over the next four years. But in terms of actual jobs, umm, in the West Valley, I’d say about 3,000.”

Chairman Tester: “Well, once again, I want to thank all of you for, ah, makin’ the trek to Washington, D.C. I know it’s not easy and some of you made it twice and I thank you for that. And I mean that. This is obviously an emotional issue it’s ah, it’s ah, an important issue. Umm, note that the hearing will remain open for two weeks and I encourage all stakeholders to submit written statements for the record. I’m gonna’ say that again. Ah, this hearing record will remain open for two weeks and, ah, if you’re a stakeholder on this issue I would encourage you to write written statements, ah, for the record. With that thank you all and this hearing is closed.”

© Joyce Clark, 2014


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


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


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.