The chairman of the Tohono O’odham Nation warned members of Congress Tuesday his tribe will sue if they approve legislation banning gaming on land it owns near Glendale.
Ned Norris Jr. told members of the House Subcommittee on Indians and Alaska Native Affairs that the 1986 law allowing the tribe to replace lands flooded by a federal dam project spells out that the new property could become part of the reservation. And Norris said members of that 1986 Congress allowed the Tohono to do on its new lands anything it can do on its historic reservation — including gaming.
“If they wanted to ban gaming on our replacement lands, they knew how to do it,” he said, pointing to other federal laws letting tribes buy property but with provisions against casinos. “But they did not.”
It is exactly that type of restriction that U.S. Rep. Trent Franks, R-Ariz., hopes to put in that 1986 law — retroactively. HR 2938 would leave the original law in place allowing the Tohono to acquire new land and have it made part of its reservation, but with the added provision that there could be no gaming.
Norris told panel members that changing the law now “would be yet another black mark in the history of the United States’ broken promises with Indian tribes.” But he said more is involved, saying it would subject the federal government to claims of breach of contract, breach of trust and taking away the property rights of the tribe, “exposing the United States and American taxpayers to substantial liability.”
He said that includes not only the money the tribe has spent so far developing the project but also any revenues that the project might have generated.
Franks, who testified at the hearing, had no comment about that possibility.
But he and others disputed the tribe’s contention that it would be the federal government breaking its promise. Instead, they said it is the Tohono O’odham Nation that is going back on its word.
The fight has its roots in a federal dam project. It flooded the 10,000 acre San Lucy District of the reservation, making virtually all of it unusable.
As compensation, the 1986 law gave the tribe $30 million. It also empowered tribal officials to purchase land anywhere in Pima, Pinal or Maricopa counties and, eventually, to have it become part of the reservation.
The tribe did buy a parcel on the edge of Glendale in 2003, less than a year after voters approved a measure giving tribes the exclusive right to conduct casino gaming in exchange for the state getting a share of the profits. But the ownership — and the plans — did not become public for six more years when the tribe asked the Department of Interior to make it part of the reservation, a necessary precursor for conducting gaming.
Diane Enos, president of the Salt River-Maricopa Indian Community, said the campaign for that 2002 measure included a specific promise that gaming would be limited to existing reservations and that there would be no more than seven casinos in the Phoenix metro area. Enos said that helped the measure win over a competing initiative by owners of dog and horse tracks that would have allowed them, too, to have slot machines.
She said officials of all the tribes also agreed they would not try to undermine that deal, slapping the Tohono for now trying to build a new one.
“In our tribal cultures, one’s word ought to be enough,” Enos told lawmakers. “Tribes should not have to worry about whether we can trust the word of another tribal government.”
Enos said it is wrong for the Tohono to try to have gaming on the site “and Congress should stop it.”
Several lawsuits seeking to stop the plans are making their way through the federal court system, with foes ranging from the state, the city of Glendale and other tribes. So far, though, the rulings have concluded that the 1986 law entitles the Tohono to do what the tribe wants, which is why Franks wants to amend that law.
But the Tohono have their allies, including Peoria Mayor Bob Barrett, who urged lawmakers to kill Franks’ legislation.
“It is job-killing legislation brought by selfish special interests,” he said, citing tribal figures that there would be 6,000 construction jobs and 3,000 permanent jobs. While Barrett did not name names, it has been no secret that a new casino near Glendale likely would attract gamblers who now travel longer distances to the gaming facilities of other tribes.
The legislation also has drawn the opposition of the Obama administration.
Paula Hart, director of the Office of Indian Gaming at the U.S. Department of Interior, said the measure that Arizona voters approved in 2002 does not limit gaming to historic reservations. She said there is language saying gambling also can occur on land tribes subsequently acquire as part of any land settlement deal and that the Glendale site fits that definition.