December 22, 2011

H.R. 2938

THE GILA BEND INDIAN RESERVATION LANDS REPLACEMENT CLARIFICATION ACT

H.R. 2938 Codifies Promises Made By The Tohono O’odham Nation

·       H.R. 2938 ensures that the Tohono O’odham Nation keeps the promises it made from 2000 to 2002 to the State of Arizona, and the voters of Arizona.  Tohono O’odham signed an Agreement in Principle in 2000, with 16 tribes committing unified action in negotiating gaming in Arizona.  In addition, the Nation spent $1.8 million to fund a tribal coalition public relations campaign urging public support for Prop 202, passed by Arizona voters in November 2002, all of which emphasized that there would be no more casinos in the Phoenix metro area.  Instead, Tohono O’odham now proposes to build a Phoenix metro casino.  See Tab A – Arizona Agreement in Principle; Tab B - Nation’s Answer to Complaint at 36 and 40; Tab C - Arizona Tribal Alliance Initiative Campaign Materials –  Yes on 202: Answers to Common Questions; Tab D - Arizona Secretary of State Voter Information on Proposition 202 – Argument “FOR” Proposition 202; Tab E –Arizonians for Fair Gaming Campaign Finance Report at 4.


·       The Tohono O’odham Nation’s actions jeopardize the uniform Arizona Tribal-State Gaming Compact for all tribes.  The tribal compacts, negotiated under the intertribal Agreement in Principle, ensured that Indian tribes had the exclusive right to conduct casino gaming in Arizona.  Because the Tohono O’odham Nation intends to renege on promises it made during the Prop 202 campaign there have been calls to end tribal exclusivity and open up gaming to horse racing and dog track owners and operators.  If this were to occur tribal compacts would be voided and many small tribes would be placed at competitive disadvantage. See Tab D; Tab B at 48; Tab F – Press Release, Governor, Tribes Outline New Gaming Compacts.
 

·       The Tohono O’odham Nation used deception to secure the Glendale parcel where it now seeks to build an off-reservation Las Vegas-style casino in violation of Prop 202.  In 2002, Tohono O’odham used a sham corporation to negotiate with a realtor for the purchase of land in Glendale to construct a casino at the same time it was telling Arizona voters in concert with other tribes that there would be no new casinos in the Phoenix metro area.  Tohono O’odham did not disclose its intention to build a casino until January 21, 2009.  See Tab B at 32 and 48; Tab G – Two Realities Timeline.

 

The Gila Bend Act is Not a Land Claim Settlement

·       The 1986 Gila Bend Indian Reservation Land Replacement Act (GBA) is not a settlement of a land claim within the meaning of IGRA, which prohibits gaming on lands acquired after 1988, unless they fit an exception, including one for lands taken into trust in a settlement of a land claim.  Lands acquired under the GBA do not satisfy this exception because a land claim concerns title to lands wrongfully taken from tribes, not lawful actions of the U.S., such as the lawful actions of the U.S. in the GBA.  The GBA was intended to fund the replacement of agricultural lands lost in a lawful condemnation—not to settle land claims.  See Tab H – Testimony, Governor William R. Rhodes, Gila River Indian Community at 9. 
 

·       H.R. 2938 does not change the terms or intent of the GBA, which provided the Tohono O’odham Nation with funds to purchase 9,880 acres as an acre for acre exchange for lands rendered uneconomical as the result of federal dam projects.  Tohono O’odham has already purchased over 16,000 acres of land with funds from the GBA and used its real estate agent as a straw man to avoid the ceiling of 9,880 acres.  See Tab I – Letter to Secretary Echo Hawk from Governor Rhodes at 5 and Statement of Facts. 
 

Congress Has Authority To Clarify Gaming Intent

·       Congress often clarifies-even retroactively and without tribal concurrence-that certain land acquisition bills never intended gaming.  Congress’ plenary power to legislate for Indian Tribes permits Congress to clarify laws to best effectuate congressional intent.  See Tab J –Testimony, President Enos, Salt River Pima-Maricopa Indian Community at 4. 

 

The Tohono O’odham Nation Has Acted To Avoid Judicial Review

·       The Tohono O’odham Nation has manipulated administrative processes to avoid judicial review and consultation with local communities, the State, and other tribes in Arizona, all in order to ensure the success of its circumvention of IGRA’s prohibition of gaming on lands acquired after 1988.  See Tab J at 9-10. 

 

Glendale Land is Not in Trust and H.R. 2938 Will Not Affect Lawful Gaming Rights

·       Under H.R. 2938, the Tohono O’odham Nation will not be prevented from gaming on lands that it could lawfully game on, including its three successful casinos (two in the Tucson metropolitan area).  H.R. 2938 prohibits gaming on lands acquired under the GBA  in the Phoenix metro area in order to codify the promises made by Tohono O’odham from 2000 to 2002.  See Tab K – Indian Country Today Article - Tohono O’odham Nation: Thriving in the Desert.
 

·       The Glendale parcel is not in trust and is not currently gaming eligible.  H.R. 2938 comports with the intent of the GBA because it does not prevent the Tohono O’odham Nation from having lands placed into trust.  Passage of H.R. 2938 will not prevent the Tohono O’odham from pursuing any variety of non-gaming high end development that would complement Glendale’s urban planning and provide a significant return on its investment in the lands.  Nor would it prohibit the sale of the lands by Tohono O’odham so long as it does so before the lands are held in trust.  See Tab L – NIGC  Tohono O’odham Nation Gaming Ordinance Amendment Decision.

Congressional Action Will Not Affect Water Rights Of The Tohono O’odham Nation 

·       H.R. 2938 does not affect the Tohono O’odham Nation’s water rights.  The GBA provided $30 million compensation to the Nation in exchange for all rights associated with the land rendered unusable by the federal dam project, including water rights.  The compensation was payment in full of all land and water rights associated with the lost acreage.  The GBA also clarifies that replacement lands purchased by Tohono O’odham do not have any reserved water rights.  Further, Tohono O’odham’s water rights settlement was enacted in separate legislation in 2004 and not under the 1986 GBA. 
 

State and Local Governments Oppose the Tohono  O’odham Nation’s Casino Proposal

·       The State of Arizona and the City of Glendale support H.R. 2938.  The City Council of Glendale passed a formal resolution in opposition to the Tohono O’odham Nation’s casino proposal and Arizona Governor Jan Brewer of Arizona and Phoenix Mayor Phil Gordon expressed opposition to Tohono O’odham’s proposal in written letters to Secretary Salazar.  Additionally, many of the Arizona Indian tribes have communicated opposition to the proposed casino through letters to Secretary Salazar or tribal council resolutions.  See Tab N- Resolution 4246, City of Glendale; Tab O- Letter to Secretary Salazar from Mayor Gordon; Tab P- Letter to Secretary Salazar from Governor Brewer.  See Tab M- Tribal letters and resolutions in opposition to casino.

 

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