In Southern Arizona we tend to applaud those who put one over on Phoenix.
So it’s natural that we smile at the Tohono O’odham Nation’s ability to overcome obstacle after obstacle as it moves toward opening a $400 million casino-resort near Glendale by the end of this year.
Still, it’s hard to read the latest effort by state officials to stop the casino, and dig into their arguments, without realizing that the tribe’s officials and hired guns have been clever rascals over the years.
“The record clearly demonstrates fraud perpetrated by TON (the Tohono O’odham Nation) upon the State, the Arizona gaming tribes and the State’s voters,” Daniel Bergin, director of the Arizona Department of Gaming, wrote on April 10 to Ned Norris, chairman of the nation. The letter references a lawsuit by the state and Phoenix-area tribes trying to stop the casino project.
Bergin is criticizing the Tohono O’odham Nation’s role in the 2002 passage of Proposition 202, the ballot initiative that established the rules and limits on Indian gaming in Arizona, as well as a tax-like revenue-sharing system with the state. The nation was deeply involved in discussions with other tribes and the state as well as voters in a campaign that left the impression that they would get one more casino in the Tucson area, while the number of casinos in the Phoenix area would be capped.
During the campaign, the tribe was simultaneously working toward opening a casino in Phoenix. Court filings make that apparent. Take this from the nation’s answer to the 2011 lawsuit filed by the state of Arizona, the Gila River Indian Community and the Salt River Pima-Maricopa Indian Community:
“The Nation admits and/or avers that in 2002 it was considering the possibility of acquiring property in the Phoenix metropolitan area for gaming purposes. The Nation further admits that it did not disclose that it was considering such an acquisition, but avers that it had no obligation to make such a disclosure.”
Or this:
“The Nation admits and/or avers that various parties characterized the provisions of Proposition 202 requiring most tribes to give up the right to one gaming facility as ‘no additional facilities authorized in Phoenix, and only one additional facility permitted in Tucson’ and that the Nation did not contradict those statements.”
There’s also the fact that in 2003 the tribe bought the contested acreage in unincorporated Maricopa County, adjacent to Glendale, through a tribe-owned third-party corporation called Rainier Resources, allowing it to conceal its ownership until the tribe was ready to announce its plans for a casino in 2009.
The reasons for the location are obvious based on a glance at a map of the Phoenix area and adjacent reservations, as ASU law professor Robert Clinton explained to me Tuesday.
Phoenix-area tribes “right now have the Phoenix metropolitan market,” said Clinton, who specializes in Indian law and teaches a course on gaming. “If you look at how the casinos are positioned on those tribes’ reservations, they’re positioned in such a way to be accessible to the entirety of the Phoenix Metropolitan area.”
“Introducing a new parcel of Indian country on the northwest of the Phoenix metro area and within 10 or 15 miles of the easternmost Gila River casino, not only introduces competition but upsets business planning created by the (2002) compacts,” he said.
The Phoenix-area tribes, of course, have not accepted the clever O’odham effort. They’ve spent millions on lobbying in D.C., supporting bill after bill that would make the Tohono O’odham casino illegal. They’ve also supported local efforts to fight the casino in Glendale.
So far, though, their efforts have failed. Last year, the city of Glendale agreed to stop fighting the casino when the tribe agreed to pay the city more than $1 million per year for two decades.
And the O’odham have repeatedly won in court. Memorably, U.S. District Judge David Campbell wrote, when ruling in the O’odham’s favor in May 2013: “Written agreements matter.”
In other words, the precise wording of the 2002 initiative and gaming compacts can’t prevent the casino project from moving forward, no matter if the tribe did not correct the facts. The state and tribes are appealing the ruling to the 9th Circuit, but they ought to stop throwing good money after bad.
There are other downsides to the O’odham nation’s moves.
Relationships with some tribes were broken.
The voters’ goodwill toward the tribes may be diminished.
And non-Indian interests may push for the right to run their own gambling businesses.
Yet the Tohono O’odham Nation has shown time and again that it knows how to get this project done. Soon it will open the tap on a flow of Phoenix money to places like Sells and Gu Vo, Vamori and Menagers Dam.
So despite it all, I can’t help but admire them. They may be clever rascals, but in Southern Arizona we can be happy they’re our rascals.
