Tribal gaming ruling still undecided for Tohono O'odham

PHOENIX — The Tohono O’odham Nation won’t be able to start full-scale gaming at its Glendale casino just yet — if ever.

U.S. District Court Judge David Campbell late Dec. 14 refused to rule that state Gaming Director Daniel Bergin is acting illegally in refusing to provide the necessary certification for Class III gambling. The judge said there are too many unresolved questions surrounding the questions of what tribal officials told state negotiators more than a decade ago when gaming compacts were first being negotiated.

But Campbell agreed to consider arguments that the state, in continuing to regulate and collect revenue sharing from the tribe’s other three casinos, has effectively ratified the compact it now seeks to partially void. And if Campbell sides with the tribe, the state loses.

If the case does go to trial it could mean days of testimony and arguments about statements and promises tribal negotiators made to state officials in 2002 when the gaming compacts were first being negotiated.

No one disputes voters were told the deal would preclude new casinos in the Phoenix area.

Attorney Matthew Hoffman, representing Bergin, said Hull would have urged voters to reject the ballot measure had she known the proffered assurances by Tohono negotiators of no interest in a Phoenix-area casino were not true.

The 2002 voter-ratified measure spells out that casinos must be on existing reservation lands. But what state negotiators may have overlooked is an exception if a tribe acquires new lands as a result of a settlement with the federal government.

That created the loophole for the Tohono O’odham who had received $30 million from Congress after a federal dam project flooded about 10,000 acres of reservation land near Gila Bend. That 1986 law allowed the tribe to purchase replacement land in Maricopa, Pinal or Pima counties and have it made part of the reservation.

Campbell previously ruled that the wording of the compact does permit construction of the casino, regardless of whether state negotiators and Hull understood otherwise.

Bergin is now refusing to grant the required state permission for full-scale gaming, contending the tribe committed fraud during the compact negotiations by misrepresenting and omitting material information.

On Dec. 14, tribal attorney Danielle Spinelli said whatever tribal negotiators may or may not have told their state counterparts at the time is legally irrelevant.

“The state was a sophisticated party,’’ she said, saying this wasn’t the tribe taking advantage of a situation. “The negotiations went on for years.’’

She said, if the state didn’t want new casinos in the Phoenix area it should have spelled that out in the compact.

Hoffman, however, said that wasn’t considered because there were assurances that the tribe, whose main reservation is in Southern Arizona, was not contemplating buying land in the Phoenix area. He said it only after the tribe unveiled its plans in 2009 that a review of documents, including minutes of tribal meetings showed tribal officials were looking at land in Maricopa County as early as 2001.

He said evidence of years long fraud is overwhelming and unmistakable,’’ saying some of the people who were looking at West Valley land were the same ones involved in negotiations.

Even if all that is true, that does not resolve the case.

Campbell said one issue is whether the state relied on the promises supposedly made and whether its negotiators were entitled to rely on those statements. That could be crucial as the compact itself says it, and not any outside promise, comprises the entire agreement.

“The compact does not prohibit the nation from building a casino in Phoenix,’’ the judge said. “But neither does it expressly permit it.’’

In the interim, the tribe is operating the casino with Class II slot machines, essentially interlinked instant bingo machines. But the tribe wants not only true slot machines but also table games like poker and blackjack.

The issue could be resolved without Campbell.

Gov. Doug Ducey has made an offer to allow the tribe full Class III gaming if it formally disavows interest in any new casinos of any type in the Phoenix area and agrees to certain other conditions, like supporting yet-to-be-written federal legislation on tribal gaming.

That language was rejected by the tribe. Chairman Edward Manuel, in a prepared statement, said the tribe has responded with “necessary clarifying language’’ it finds necessary before it agrees to anything.

The governor’s office refused to comment on what the tribe wants or the status of negotiations.

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