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Promise Act Blatantly Breaks Promise to Tohono O’odham Nation

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While Canada moves toward reconciliation with First Nations peoples, the U.S. Congress is considering legislation that would break yet one more promise to yet one more American Indian tribe.

Sen. John McCain and Rep. Trent Franks, both Arizona Republicans, have introduced Keep the Promises Act of 2015, that would invalidate the terms of a decades-old federal land agreement with the Tohono O’odham Nation.

The settlement – which was passed by Congress and became law in 1986 – compensated the tribe after the Painted Rock Dam, built by the Army Corps of Engineers on the Gila River, caused flooding in the 1970s and early 1980s, ruining 10,000 acres of the tribe’s agricultural land and forcing residents to relocate to a 40-acre village.

The Gila Bend Indian Reservation Lands Replacement Act awarded the tribe $30 million and guaranteed it the right to acquire new lands in Maricopa County, Ariz., which the government promised to treat as reservation land. Then the federal Indian Gaming Regulatory Act of 1988 specifically allowed tribes to build gaming facilities on land acquired as part of a land settlement act.

The Tohono O’odham Nation did indeed opt to build a casino-resort on the new land, as it had done on other reservation land. The Nation got the go-ahead for gaming from the Indian Gaming Regulatory Commission and signed Class III gaming compacts with the state of Arizona in 1993. The tribe opened its first Desert Diamond Casino that same year. The terms of the 1993 compacts were virtually unaltered when the compacts were renegotiated in 2003.

And then things got tough. Opposition to the tribe’s casino-resort project in Phoenix’s West Valley has been the subject of local and state lawsuits, lobbying efforts and media campaigns ever since. Neighboring tribes that have casinos in the area, including the Gila River Indian Community, the Fort McDowell Yavapai Nation and the Salt River Pima Maricopa Indian Community, have opposed the project.

On June 11, the Navajo Nation passed legislation supporting the federal effort to stop the casino project. Navajo Nation Tribal Council Speaker LoRenzo Bates was quoted in a press release as saying, “The Keep the Promise Act will help to protect Navajo’s investment in the Twin Arrows Navajo Casino Resort and protect the integrity of Arizona’s compact by limiting casino development in Pima and Maricopa Counties as was agreed to.”

Recently-elected Arizona Gov. Doug Ducey and state Attorney General Mark Brnovich have taken up their predecessors’ standard and the state remains firmly hostile to the tribe’s project, as do some local communities. The city of Glendale was opposed at first but has reversed its position and now supports the project. The tribe estimates the new casino-resort will bring 3,000 permanent jobs to the area.

Those who do not want the Tohono O’odham Nation to build this resort-casino cite a 2002 referendum that was part of the basis for renegotiating the state-tribal gaming compacts in 2003. The voters agreed to allow the compacts with 16 Arizona tribes, including the Tohono O’odham, with the proviso that the Phoenix metropolitan area would host no more than the seven casinos already in operation.

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According to proponents of the casino project, however, the West Valley project is not subject to the terms of that referendum because the tribe was guaranteed the right to build the casino by IGRA when that law specified that casinos could be built on lands acquired as a result of a land settlement act and by the land settlement act of 1986.

So far the tribe has prevailed in all legal and federal agency challenges to the project.

Construction on the project began in August of last year. The only way to stop the project now is literally by an act of Congress (the Keep the Promise Act of 2015 would effectively nullify another act of Congress – the Gila Bend Indian Reservation Lands Replacement Act of 1986.).

In January, McCain and Franks introduced the Keep the Promise Act of 2015 in the U.S. Senate and House. The legislation would prohibit Class II and Class III gaming activities regulated under IGRA within the Phoenix metropolitan area on lands taken into trust by the secretary of the Interior for the benefit of an Indian tribe after April 9, 2013. The prohibition would stay in place until 2027, when the compacts between the State of Arizona and tribes operating Class III casinos expire. While the language seems to apply to all tribes, the legislation would affect only the Tohono O’odham’s West Valley development. The land on which that project is being built was taken into trust for the Tohono O’odham Nation in 2014.

The legislation was reported out of the Senate Committee on Indian Affairs and the House Natural Resources Committee favorably on April 29. The title of the legislation refers to the “promise” of no more than seven casinos in the Phoenix area that was part of the 2002 referendum.

Tohono O’odham Tribal Chairman Ned Norris, Jr., said in an April 29 press release, “This legislation hearkens back to an era of broken treaties and false promises. After the Nation has consistently followed the law, it is shameful for the Senate to consider breaking the federal government’s word, and placing taxpayers on the hook for this special interest earmark. If this legislation passes, all tribes should question whether Congress can be trusted to keep its word in land and water rights settlements.”

Julie Taralio, a spokeswoman from McCain’s office says, “Senator McCain shares the concerns raised by a number of Arizona mayors and other locally elected officials who oppose attempts to bring Indian gaming to metropolitan areas that are on lands not connected to an extant reservation. As one of the authors of the Indian Gaming Regulatory Act and the Gila Bend Indian Reservation Replacement Lands Act, Senator McCain can authoritatively say that Congress did not envision Indian gaming on the kinds of lands involved in this issue. Senator McCain voted to advance this bill out of the Senate Indian Affairs Committee in April, and he will continue to support every effort to end this controversial off-reservation gaming issue.”

Similar legislation was introduced in Congress in 2012 and subsequent years but did not pass.

This is the final opportunity opponents will have to stop the casino-resort before it is scheduled to open later this year. Should the legislation pass and the tribe sue, damages awarded to the tribe could range from nothing to $1 billion, according to the Congressional Budget Office.

Tohono O’odham Tribal Chairman-elect Edward D. Manuel had not responded to requests for comment by press time.