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When winning is not enough

It has captivated West Valley residents for almost eight years.

Who could have known that a phone call notifying Peoria Times about the Tohono O’odham Nation in southern Arizona holding a press conference at a Phoenix hotel would have such historical implications.

Desert Diamond Casino-West Valley has now been open 11 months.

But casino owner, Tohono O’odham Nation, is not happy with a Class II gaming license. And the Nation, dba Desert Diamond Enterprises, has agreed to postpone a decision on its application for a No. 6 series liquor license.

A Dec. 14 court date is now the focus of the Nation, where tribal officials are hoping to get a favorable decision from Federal Judge David Campbell, Ninth Circuit Arizona District, on its request for summary judgment against the State of Arizona. Of course, even if the Nation receives a favorable decision, the state can always appeal. And that means more delays, not months, but years of legal haggling over a Class III gaming license, a license only the state can give.

The Nation now has a decision to make. Should it accept the terms of a gaming compact amendment signed by 10 other tribes Nov. 21? On paper, the amendment looks good. The Nation would receive its Class III gaming license, but only if it agrees not to build another casino in the Phoenix metro area.

Other tribes have agreed not to open another casino in the Phoenix area. By a law already on the books, they can’t do that anyway.

Only the Nation, with its special exemption under the Gila Bend Reservation Lands Replacement Act (LRA) of 1986, has the authorization to request the U.S. Department of Interior declare other plots of unincorporated land in Pima or Maricopa counties as trust land; a reservation. Section 6 of the LRA mandates that the Secretary of the Interior must hold in trust any replacement lands which satisfy specific criteria set forth in the Act and the land “shall be deemed to be a federal Indian reservation for all purposes.”

The LRA itself (P.L. 99-503) was put together by Senators Barry Goldwater and Dennis DeConcini, and Congressmen John McCain and Mo Udall.

Regardless of your position on the “right” authorized by the LRA to the Nation, you have to recognize the brilliance demonstrated by the Nation’s lawyers, who have repeatedly won their cases in court, based on the exemption given to the Nation by Congress.

Try as the state might to undermine that exemption, it remains in place, and the Nation took full advantage by purchasing the land at 91st and Northern avenues, then proceeding to build a gaming facility, albeit a Class II without gaming tables, and slot machines based on bingo games. Still, the Nation must deal with the legal system in its pursuit of the top gaming license, a Class III, which would allow it to offer poker and blackjack and Las Vegas-style slot machines.

The state and the two largest casino operators in Arizona, Gila River Indian Community and Salt River-Pima Maricopa Indian Community, have attempted to use the 2002 gaming compact as a tool that ties the Nation’s hands. But, those attempts have not been successful in 13 different court decisions.

If the Arizona Department of Gaming had not stubbed its toe by sending letters threatening the legal status of vendors who did business with the West Valley Resort; and if it had not sent letters threatening the certification of employees who accepted positions at the West Valley Resort; and if it had not sent a letter to Director Cocca of the Arizona Department of Liquor Licenses and Control suggesting denial of a liquor license for the West Valley Resort; and if it had not sent a letter to the Congressional Budget Office about the Keep the Promise Act; and if it had not sought to delay the opening of the West Valley casino until the Keep the Promise Act could be enacted – all of which are not accusations, but facts taken directly from court documents - perhaps this protracted journey undertaken by the Nation would have reached a final destination by mid-summer.

Alas, the machinations behind the veil of transparency have undone the state and various agencies that have held up the Nation for so long. They have formed too many close relationships with the two largest casino operators instead of standing back at arm’s length to honor the oaths they took to treat all equally and equitably.

There are, undoubtedly, many state officials who will believe forever that the Nation was making plans for a West Valley casino long before the 2002 compact was passed into law. And, perhaps those same officials felt they were doing the right thing by their failed attempts to trip up the Nation at every turn.

But that is not how the judicial system works. It works with language, and very strict language when it comes to contracts and compacts. If it is not written down in a precise manner, no contract (or compact in this case) can be enforced.

And the United States stated very clearly in the LRA that the Tohono O’odham Nation could purchase unincorporated land anywhere in Pima or Maricopa counties to replace the land it lost to flooding as a result of Painted Rock Dam, a structure built by U.S. Army Corps of Engineers. It is plain language, it is enforceable, and the Nation, in spite of its prolonged battles in court, may want to see a positive outcome declared outright by a federal judge.

The compact amendment may seem to be the short answer, but, upon a more thorough reading, nowhere in the language does it state clearly that the State of Arizona will definitely issue a Class III gaming license to the Tohono O’odham Nation for a facility at 91st and Northern avenues in Maricopa County, Arizona. It merely “recognizes” the Nation’s exempt status under the LRA. Nor, does the compact state clearly that the State of Arizona will issue a No. 6 series liquor license.

It is again all smoke and mirrors.

When questioned precisely, “Are you giving the Tohono O’odham a Class III license,” Gov. Doug Ducey replied, “They’re welcome at the table.”

More negotiations? No guarantee?

If I were a member of the Tohono O’odham Nation, I would be leery of a compact amendment that has no specific language or guarantees. The compact amendment outlines just two new “modernizations” related to slot machines and table games, but if you’re a gambling person, don’t bet on the state and its apparent “random act of kindness.”

The proposed compact amendment may look like a win-win, but sometimes, winning is not enough. Calling the state’s bluff, a total victory would be prevailing in plain language, through a Dec. 14 decision by Judge Campbell in federal court. Further, vindication should come with an apology, a Class III gaming license, a No. 6 series liquor license and payment of seven-plus years of the Nation’s attorney fees. The Nation deserves nothing less.