PHOENIX — Gov. Doug Ducey has asked a judge to throw out a legal bid to quash — or, at least delay — off-reservation sports betting just days before it is scheduled to start.
There is no basis for the claim by the Yavapai-Prescott Indian Tribe that allowing people to wager on professional and college sports violates a 2002 voter-approved initiative that limits gambling to reservations, legal papers filed late Friday contend.
Attorney Heidi McNeil Staudenmaier, representing the governor, disputes that the wording of Proposition 202 provides tribes with the exclusive right to conduct gaming. But even if that is the case, she says that the law was crafted in a way that anticipates there could be off-reservation gaming — if the tribes got something in return.
In this case, Staudenmaier said, they will: permission to operate more gaming machines, more types of gaming and their own right to take bets on sporting events.
The governor also contends that the tribe has effectively forfeited its right to challenge the deal and try to block the sports wagering that is set to begin on Thursday.
Staudenmaier said 21 of the state’s 22 tribes have been negotiating a new gaming compact for five years while the Yavapai-Prescott tribe “opted not to participate.” That was followed by legislative hearings, with no objections from the tribe.
“Without any justification YPIT waited to file this action until the 11th hour,” Staudenmaier said. And that, Staudenmeiar said, means the tribe purposely sat on its hands, creating this last-minute legal legal crisis.
A hearing is set for Monday on the tribe’s request for a restraining order.
Hanging in the balance is whether people will be able to lay down bets beginning Thursday. That date was set to allow for wagering on the opening regular season game of the Arizona Cardinals on Sept. 12 against the Tennessee Titans.
At the heart of the legal fight is Proposition 202. Crafted by a coalition of tribes, the 2002 initiative was designed to have all casino-style wagering confined to reservations. In exchange, the tribes provide a share of their revenues to the state.
The legislation signed earlier this year by Ducey — the plan that was negotiated with most of the tribes in Arizona — opens the door for on- and off-reservation sports wagering. That deal paved the way for what the governor called “modernized gaming compacts” which gives tribes the right to operate more games.
It also opened the door to those sports franchises to take bets on college and professional games, with the state getting a share. Legislative budget staffers estimated that would generate $34.2 million for the state, though some lawmakers have said the take would be much greater, Staudenmaier said.
Luis Ochoa, an attorney for the Yavapai-Prescott Indian Tribe, contends none of that is legal.
The Voter Protection Act of the Arizona Constitution precludes lawmakers from altering what voters have approved unless it “furthers the purpose” of the original law, Ochoa says. And this new gaming compact does not do that because it eliminates what he contends is the exclusive right of tribes to conduct certain forms of gaming, he said.
“It is directly repugnant to and inconsistent with the intent of Proposition 202,” Ochoa wrote.
Staudenmaier disagrees.
The legislation that paved the way for the sports gaming does further the purpose of Proposition 202 because it allows the tribe and the state to share in gaming revenues while still limiting the scope of gaming in Arizona, Staudenmaier said.
“Without this action, Indian tribes in Arizona face the risk that tribal casinos could be shut down, and plans to share Indian gaming revenues with the state and to create opportunities for non-gaming tribes to benefit from Indian gaming will go unrealized,” she said, quoting from the legislation.
Anyway, Staudenmaier said, the word “exclusive” does not appear anywhere in Proposition 202.
And the governor’s attorneys also claim that Proposition 202 always anticipated the possibility that the state would decide to offer new forms of off-reservation gaming.
Their proof? A “poison pill” provision in the original law.
It says that if the state ever decides to allow off-reservation gaming, then the tribes are no longer bound by the original restrictions as to the number and type of gambling machines and tables they can have.
They said that HB 2772 signed by the governor provides those new limits.
Ducey’s lawyers also reject Ochoa’s argument that giving 10 licenses to take sports wagers to franchises and an equal number to tribes violates the Equal Protection Clause of the U.S. Constitution.
It is true that, for the moment, every sports franchise that wants to take bets got a license. By contrast, having only 10 licenses for more than 21 tribes means the odds are better than even that any given tribe will wind up out of the running.
But the governor argues that there’s nothing wrong with a limit of 10, saying that there could be a time when there will be more than that many sports franchises, meaning some of them, too, will not get the right to take bets.
Anyway, Staudenmaier said, lawmakers had a reasonable basis to create separate classifications for sports franchises and for tribes. She said franchises are limited to taking wagers to a five-block radius around their facilities, though they also can accept bets online and by phone.
Ochoa, in seeking to at least delay the start of sports gaming, claims that his tribe, no longer with a monopoly on gambling, stands to lose money. But the governor counters that Smith has to consider what a delay would mean in financial loss to others, including the sports franchises that have invested cash in setting up new gaming facilities.
