It has now been two weeks since Federal District Court Judge David Campbell received supplemental briefs and responses to each from the plaintiffs and defendant in the ongoing court battle between the state, Gila River Indian Community and Salt River Pima-Maricopa Indian Community vs. Tohono O’odham Nation regarding the resort/casino proposed for land at 95th and Northern avenues.
The plaintiffs have charged that the defendant is violating the terms of a compact between the 17 tribes and the state that led to a ballot measure, Proposition 202, approved by Arizona voters in 2002.
The defendant has maintained since the court battles began in 2009 that it has not breached the compact, and that its proposed resort/casino is legal because of its exemption that allows it to purchase unincorporated land within the borders of Pima, Pinal and Maricopa counties and have it designated reservation trust land by the U.S. Department of Interior.
In their supplemental brief, plaintiffs allege the Tohono O’odham Nation knew exactly what the compact meant, using a horse/cow reference to illustrate its argument. By that, plaintiffs stated in their brief that it was reasonable for the Tohono O’odham to understand there was a ban in the compact on more casinos being built in the Phoenix metropolitan area until 2025.
Plaintiffs said “horse” means “cow” if one party knew the other party so intended. They explained that when a contract is agreed to by two parties for the sale of a cow, and the contract actually reads horse, both parties understand what the contract actually means, and the court will enforce the contract for the sale of a cow.
The Tohono O’odham responded that the plaintiffs “misconstrued this common-sense proposition to mean that courts will enforce the seller’s unreasonable interpretation of ‘horse’ to mean ‘cow.’ The Nation said no “similar error occurred here.”
Further, the Nation responded with, “Plaintiffs cannot seriously contend that the parties agreed to include a term prohibiting new casinos in Phoenix but instead inadvertently (a) included a gaming device allocation chart that makes no mention of such a prohibition; (b) preserved tribes’ ability to conduct gaming anywhere on their Indian lands, including lands acquired under IGRA (Indian Gaming Regulatory Act), 25 U.S.C. §2719.”
The Nation also maintained that the compact “included an integration clause repudiating any ‘other statement, agreement, or promise’ outside the writing. Accordingly, the only question here is the meaning of the written Compact to which the State agreed—a dispute this Court has already resolved in the Nation’s favor.”
Even if Campbell rules in either party’s favor, there is likely to be an appeal.
The Nation revealed its plans in January 2009 for the resort/casino at 95th and Northern. Since that time, Ken Salazar retired last year from the Department of Interior, and in his place, Obama appointed Sally Jewell.
The departure of Deputy Secretary of the Department of the Interior David Hayes could mean a better outcome for the Nation for one reason alone cited in the weekly publication Indian Country Today. According to ICT, there was reportedly a “controversial relationship with Sen. Dianne Feinstein (D-Calif.)” that involved draft legislation “to limit gaming, especially off-reservation gaming, for some tribes.” The ICT did not report one way or another whether Hayes’ successor would be working as closely with Feinstein.
There has also been a change in the leadership of the Bureau of Indian Affairs. Larry Echo Hawk left as head of BIA in the spring 2012, and Kevin Washburn was confirmed in September 2012 to replace him. Visit www.bia.gov to learn more about this agency and its place in the affairs of Native Americans.
To learn more about IGRA, and rules cited in various court proceedings dealing with Indian gaming, go to the Federal Register.
The Federal Register regarding IGRA reads: “IGRA allows Indian tribes to conduct class II and class III gaming activities on land acquired after Oct. 17, 1988, only if the land meets certain exceptions. This rule articulates standards that the Bureau of Indian Affairs will follow in interpreting the various exceptions to the gaming prohibitions contained in section 2719 of IGRA. It also establishes a process for submitting and considering applications from Indian tribes seeking to conduct class II or class III gaming activities on lands acquired in trust after Oct.; 17, 1988.”
For more information, readers are referred to George Skibine, director, Office of Indian Gaming, phone: 202-219-4066.