PHOENIX — A new federal court ruling means there will not be full-blown gambling at a new Glendale casino for months — if not longer.
U.S. District Judge David Campbell said the Tohono O’odham Nation waived its immunity from lawsuit when it filed suit itself against state Gaming Director David Bergin. The tribe wants Campbell to force Bergin to issue the necessary certifications to let the tribe conduct Class III gaming, complete with slot machines, blackjack and poker.
What that means is Campbell will now consider Bergin’s claim that tribal officials engaged in fraud in hiding plans for a new casino ahead of a public vote in 2002 giving tribes the exclusive right to operate casino gaming in Arizona in exchange for sharing some revenues with the state.
Tohono O’odham Tribal Chairman Edward Manuel dismissed the ruling as no big deal.
He pointed out a federal appeals court has said, as recently as earlier this week, the compact the state signed does, in fact, allow the tribe to open a casino in Glendale. And he said a federal appeals court already has rejected arguments that anything tribal officials may have promised or stated is irrelevant to the validity of the compact.
But the issue before Campbell is whether Bergin has the authority to declare that those statements amount to fraud and therefore permit the gaming director to declare the tribe unfit to operate the new casino.
Some of those claims go to the question of whether voters, in being asked to approve the gaming compacts, were misled.
Foes of the casino cite a brochure of “common questions” distributed ahead of the election.
One asks whether the measure would limit the number of tribal casinos in Arizona. The answer: Under Prop. 202, there would be no additional facilities authorized in Phoenix, and only one additional facility permitted in Tucson.
Attorneys for the Tohono O’odham conceded they helped pay for the brochure. But they said it was inaccurate because it was drafted by “public-relations consultants” who “did not necessarily seek to depict the compact with legal precision.”
Jane Hull, who was governor at that time, made similar statements in supporting the ballot measure, including one which said the plan “ensures that no new casinos will be built in the Phoenix metropolitan area.”
And Bergin has cited notes from the O’odham Tribal Council at meetings before the 2002 vote that not only suggest buying land west of Phoenix but putting it in a “shell company” to “keep it quiet” while negotiations with the state over the gaming agreement were taking place.
The battle traces its roots to the 1960 construction of the Painted Rock Dam on the Gila River, near what had been the San Lucy District of the Tohono O’odham Reservation. A series of floods from the dam made the nearly 10,000 acres economically unusable.
In 1986 Congress gave the tribe $30 million to buy replacement land in Pima, Pinal or Maricopa counties, with the option of having it become part of the reservation.
Then, in 2002, voters approved the initiative, promoted with promises gaming would be limited to existing reservations and specific limits on the number of casinos each tribe could have.
In 2003, the tribe, using a corporate alias, bought the parcel near Glendale. Its true ownership did not become known until 2009 when the tribe asked the Interior Department to make it part of the reservation.
That has been done. But absent approval from the state, it can operate only Class II games, generally considered analogous with what is legal elsewhere.
That includes things like bingo. So what the tribe has done is install slot machines into what is eventually to be a warehouse. They essentially operate as connected and instantaneous bingo games, technically qualifying.
But tribal officials have made no secret they see full-blown gaming as crucial to their plans for a larger development on the parcel, including a resort.
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