A federal appeals court this morning on Tuesday slapped down yet another bid by state officials and other tribes to block the Tohono O’odham Nation from conducting full-blown gaming at its Glendale casino.
In a unanimous ruling, the 9th U.S. Circuit Court of Appeals rejected arguments that the deal negotiated between the state and the tribe does not permit the Tohono O’odham to operate a casino on land that was not part of its reservation at the time. Justice Carlos Bea, writing for the panel, said it’s irrelevant whether state officials thought — and even contend they and the voters who approved the deal were led to believe — that such gaming was not permitted.
Bea pointed out that the agreement, formally known as a compact, was “negotiated at length by sophisticated parties.” And he said the words in that deal are all that matter, no matter what the state and other tribes allege in their lawsuit.
“The language is unambiguous and not reasonably susceptible to the plaintiffs’ interpretation that the compact implicitly bars the nation from gaming in the Phoenix area,” Bea wrote. He said any evidence to the contrary which is not part of the agreement is legally irrelevant “and therefore must be rejected.”
While this litigation has been going on, the tribe has opened the casino on the edge of Glendale with Class II gaming, something the state cannot regulate. That permits them to operate devices that look like slot machines but use a different kind of program to determine winners.
But the tribe still wants certification for Class III gaming, something that would allow for not only different slot machines but also the ability to operate other games like blackjack, poker and roulette.
Neither the state nor the Gila River Indian Community, which stands to lose business to the new casino, appear ready to give up despite Tuesday’s ruling affirming the right of the tribe under federal law and the compact to operate Class III gaming.
Daniel Scarpinato, press aide to Gov. Doug Ducey who opposes the casino, said Tuesday his boss is encouraging the state’s lawyers “to explore all options to make sure Arizona’s interests are considered.”
And even if this ruling is not overturned, both Ducey and the Gila River Indian Community have one more line of attack to kill the casino: federal legislation.
The proposal by Republican Congressman Trent Franks would retroactively alter the 1986 law which give the tribe the right to buy the Glendale property in the first place and operate a casino there.
Franks has failed twice to get congressional approval. But Manuel Johnson, spokesman for the Gila River community, said it should be resurrected, saying it would settle the issue once and for all, regardless of whether federal courts say the compact is valid.
“Simply put, the (Tohono O’odham) Nation broke its promise to Arizona voters and to its sister tribes across the state by negotiating in bad faith and opening a casino off traditional reservation lands, something Nation leaders for years assured one and all they would not do,” Johnson said in a prepared statement.
That claim goes to the heart of both this lawsuit and the federal legislation.
Challengers say Tohono O’odham officials took actions during negotiations they contend led everyone, including voters, to believe that gaming would be limited to reservations that existed in 2002.
For example, they said tribal officials made statements to editorial boards of Tucson newspapers that there would be no expansion of gaming. And they said Tohono O’odham Nation representatives were actively involved with leaders of other tribes in preparing documents in support of Proposition 202, the 2002 initiative that gave tribes the exclusive right to operate casinos, which said “there will be no additional facilities authorized in Phoenix, and only one additional facility permitted in Tucson.”
Bea said none of that matters.
He pointed out that the compact itself says it “contains the entire agreement of the parties.” More to the point, it says that “no other statement, agreement, or promise made by any party, officer, or agent of any party shall be valid or binding.”
The bottom line, said Bea, is that federal law allows the tribe to operate Class III gaming at the Glendale site and nothing in the written deal with the state contradicts that.
Tuesday’s ruling does not end the bid by the tribe to conduct Class III gaming on the site.
The state’s gaming director has refused to issue the necessary permits.
Daniel Bergin is claiming that the tribe had a “secret plan” to build the casino on non-reservation land before the compact was negotiated and voters ratified the language.
He contends the tribe hid that fact. That, he contends, makes the tribe legally unfit to operate the casino.
The tribe disagrees and is asking U.S. District Court Judge David Campbell to remove the hurdle. Campbell as yet to rule.
Separately, the tribe has faced a series of delays in getting the state Department of Liquor Licenses and Control to approve a liquor license. Scarpinato would not comment on that or answer questions whether the governor has interceded.