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S. HRG. 113–506 

S. 2670, KEEP THE PROMISE ACT OF 2014 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 17, 2014 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

JON TESTER, Montana, Chairman 

JOHN BARRASSO, Wyoming, Vice Chairman 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

MARK BEGICH, Alaska 

BRIAN SCHATZ, Hawaii 

HEIDI HEITKAMP, North Dakota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

MIKE CRAPO, Idaho 

DEB FISCHER, Nebraska 

MARY J. PAVEL, Majority Staff Director and Chief Counsel 

RHONDA HARJO, Minority Deputy Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on September 17, 2014 ..................................................................... 1 

Statement of Senator Barrasso ............................................................................... 2 

Statement of Senator McCain ................................................................................. 2 

Statement of Senator Tester ................................................................................... 1 

WITNESSES

Mendoza, Hon. Gregory, Governor, Gila River Indian Community; accompanied by Allison C. Binney, Partner, Akin Gump Strauss Hauer & Feld 

LLP ........................................................................................................................ 10 

Prepared statement .......................................................................................... 12 

Norris, Jr., Hon. Ned, Chairman, Tohono O’odham Nation ................................. 35 

Prepared statement .......................................................................................... 36 

Sherwood, Hon. Gary, Councilman, City of Glendale, Arizona; accompanied 

by Hon. Sammy Chavira, Councilman, City of Glendale, Arizona .................. 30 

Prepared statement .......................................................................................... 32 

Washburn, Hon. Kevin, Assistant Secretary—Indian Affairs, U.S. Department 

of the Interior ....................................................................................................... 3 

Prepared statement .......................................................................................... 5 

Weiers, Hon. Jerry, Mayor, City of Glendale, Arizona ......................................... 27 

Prepared statement .......................................................................................... 29 

APPENDIX

Beauty, Hon. Thomas, Chairman, Yavapai-Apache Nation, prepared statement ...................................................................................................................... 68 

Counts, Sherry J., Chairwoman, Hualapai Tribe, prepared statement .............. 70 

Ga ́mez, Hon. Adolfo F., Mayor, City of Tolleson, Arizona, prepared statement . 66 

Hart, Robert, Executive Vice President, Hunt Construction Group, prepared 

statement .............................................................................................................. 75 

Insalaco, Hon. John, Mayor, City of Apache Junction, Arizona, prepared statement ...................................................................................................................... 65 

Kavanagh, Hon. Linda, Mayor, Town of Fountain Hills, Arizona, prepared 

statement .............................................................................................................. 67 

Letters submitted for the record ............................................................................. 75–95 

(1) 

S. 2670, KEEP THE PROMISE ACT OF 2014 

WEDNESDAY, SEPTEMBER 17, 2014 

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:15 p.m. in room 

628, Dirksen Senate Office Building, Hon. Jon Tester, 

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

The CHAIRMAN. The Committee will come to order. 

Today we are holding a hearing at the request of Arizona Senators McCain and Senator Flake on S. 2670. The bill would address 

an issue specific to Arizona, but one that could have broader implications for this Committee. It will affect the role of Congress with 

regard to gaming compacts between tribes and States. 

The Indian Gaming Regulatory Act affirmed the authority of 

tribes to conduct gaming on the reservations. It specifically required States and tribes to negotiate gaming compacts. The Act 

further requires the Department of Interior to approve or disapprove these compacts. 

The Act provided no further role for Congress in this process. I 

think most of the members of the Committee would agree that is 

a good thing. 

The State of Arizona and the tribes within the State entered into 

a compact, which was voted on and passed through a statewide 

vote in 2002. Now, however, the tribes within the State and some 

municipalities disagree on what the vote approved. Senator McCain 

was highly involved in the drafting and the passage of both the Indian Gaming Regulatory Act and the Gila Bend Indian Reservation 

Lands Replacement Act. These acts formed the basis of the issue 

that S. 2670 would address. 

We heard witness testimony on this issue earlier this year. And 

now we have called the stakeholders back to discuss the specifics 

of this legislation. We have also invited the Administration to get 

their perspective. Welcome, Kevin. 

Overall, this Committee wants to ensure that any action taken 

on this specific issue doesn’t have broader impacts for tribes across 

the Country. 

Senator Barrasso, do you have an opening statement? 

2 

STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

Senator BARRASSO. Thank you, Mr. Chairman. In the interest of 

time, I will keep the statement brief. We will consider S. 2670, the 

Keep the Promise Act of 2014, introduced by Senators McCain and 

Flake. The complexity of issues involved in this issue should be 

fully examined by the Committee. 

I appreciate my colleague Senator McCain’s leadership on the 

matter. I want to welcome the witnesses to the hearing today and 

look forward to the testimony. Thank you, Mr. Chairman. 

The CHAIRMAN. Senator McCain. 

STATEMENT OF HON. JOHN MCCAIN, 

U.S. SENATOR FROM ARIZONA 

Senator MCCAIN. First of all, Mr. Chairman, in this busy last 

week, I want to thank you for allowing time for this hearing. I appreciate it more than I can tell you. This is a really huge issue in 

my State, particularly in the Phoenix metropolitan area. 

I was, with the late Senator Dan Inouye, heavily involved for 

many months as we put together the Indian Gaming Regulatory 

Act. We received witness after witness, particularly from various 

States that had large Native American communities, that said, 

look, we are all for Indian gaming. But we don’t want it on land 

that is not contiguous to the Indian reservations. They said, we 

want it to be fair to Native Americans, but we also want it to be 

fair to the citizens of non-Indian Country that they can be assured 

that Indian gaming casinos won’t show up in the middle of their 

communities. 

I can assure you, and I can assure the witness, it was never the 

intent of Senator Inouye and I, through weeks and months of hearings, to have air-dropped, no matter what rationale you are using 

for it, because of some settlement, to have reservations that have 

non-contiguous Indian gaming air-dropped in the center of a metropolitan city without at least the people of that area being allowed 

to vote on it, at least. 

But the fact is, it was never the intent of the law, and what you 

are about to do, Mr. Washburn, is to violate the intent of the law. 

Quite often around here we hear about legislation and people talk 

about the intent of Congress. I am telling you the intent of Congress, because it was called the Inouye-McCain Act. And it was a 

great Act. In light of the Cabazon decision, it was mandatory that 

the United States Congress act. 

I am proud of that Act, and I am proud of the benefit that it has 

accrued to Indian Country. I am proud that there has been revenue 

sharing between, as there is in our State of Arizona, between the 

gaming tribes and the State of Arizona and the contribution they 

have made. I never contemplated air-dropping in the middle of 

Glendale, no matter what the rationale was for, an Indian gaming 

operation. 

So I want to make it clear, Mr. Chairman, what the intent of the 

law was. Because I was one of the two authors. 

I thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator McCain and Senator 

Barrasso, for your comments. 

3 

Now I want to call up our first witness, Mr. Kevin Washburn, 

the Assistant Secretary for Indian Affairs at the Department of Interior. Kevin, you have been with us many times, we always look 

forward to hearing the Administration’s thoughts on these issues. 

The Committee knows you are busy. So we will try to get through 

with your portion of the testimony as soon as possible. We will 

have some questions. 

We appreciate your time. Thank you for being here today. You 

may proceed. 

STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT 

SECRETARY—INDIAN AFFAIRS, U.S. DEPARTMENT OF THE 

INTERIOR 

Mr. WASHBURN. Thank you, Mr. Chairman. And thank you, Mr. 

Vice Chairman and Senator McCain. Thank you for having me here 

today. 

Maybe I shouldn’t be thanking you. This is a difficult issue and 

I find myself nervous today, and I guess it’s because I never like 

to disappoint my friends. There are no more passionate tribal leaders in the Country that I know of that than Greg Mendoza and 

Diane Enos. They are probably here in the room. And yet, we find 

ourselves being asked to, being forced to provide our perspective on 

this bill. 

I have to tell you that I am not really happy to be here, but when 

pushed, I will tell you what I think about this bill. I believe that 

the Tohono O’odham Nation has an expectation of land in Maricopa 

County or in Pinal or Pima County, and they have had that expectation for nearly 30 years now, based on the Gila Bend Act. 

And they came by that expectation righteously. We assured them 

that we wouldn’t flood their lands in the San Lucy District back 

in 1960 when we started working on a dam. And we proceeded to 

do just that. We flooded those lands. And they came to Congress 

and looked for a settlement, given the fact that their expectations 

didn’t come out a they should have with regard to the dam. 

So Congress enacted the Gila Bend Act and promised them land, 

up to 10,000 acres in three counties in Arizona, central Arizona, so 

long as it was not within an incorporated municipality. And that 

was their expectation and that is the Gila Bend Act. Congress was 

well aware of gaming at the time the Gila Bend Act was passed. 

It didn’t include any prohibitions on Indian gaming. Indian gaming 

was a robust industry by that time and the very next year it ended 

up in the U.S. Supreme Court in the Cabazon case. Cases don’t just 

arrive in the Supreme Court, they go through multiple levels before 

they reach the Supreme Court. 

So this was, again, well known to Congress. There had already 

been hearings before Congress on Indian gaming and it was well 

known at the time the Gila Bend Act was passed. 

Then shortly thereafter, in 1988, Congress enacted the Indian 

Gaming Regulatory Act, that Senator McCain spoke eloquently 

about. This Indian Gaming Regulatory Act did not mention Tohono 

O’odham and it indeed included a specific provision that allows an 

exception to the prohibition on gaming after the enactment of 

IGRA, on lands acquired after that time, included a specific proviVerDate Mar 15 2010 09:56 Feb 24, 2015 Jkt 091740 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\DOCS\91740.TXT JACK
4 

sion that essentially speaks right to the situation involving the 

Gila Band parcel. 

So Tohono O’odham had an expectation, a reasonable expectation 

that this land, which was certainly thought to be for economic development, that they would be able to game on this land. 

I think a more practical perspective is also in order. I hear over 

and over that gaming distributes resources unfairly because it creates tribes that are haves and tribes that are have nots. Despite 

the popular conception, most tribes don’t have gaming. Most tribes 

don’t benefit in any way from gaming. 

Gaming was being strongly encouraged when the Gila Band Act 

was passed. Ronald Reagan’s Department of the Interior was 

strongly trying to get tribes to increase gaming, because that would 

increase self-sufficiency for tribes. And when Ronald Reagan signed 

the Indian Gaming Regulatory Act in 1988, he said he was supporting the statute because he wanted tribes to be more financially 

independent, more self-sufficient. 

And I come over to this Committee all the time and I get beat 

up because some members of this Committee think that the Administration is not asking for enough money from the taxpayers for 

Indian tribes. And maybe we aren’t. But this action by Tohono 

O’odham to try to open up this casino is their effort to provide for 

their own people. And it is clearly allowed by existing law. Certainly that issue has been litigated over and over. That is what 

Judge Campbell, a Republican appointee, found when he looked at 

this issue. 

Let me add, too, that when gaming began in the Valley of the 

Sun, the population of the Phoenix metropolitan area was in a 

neighborhood of 2 million people. Today the metro area exceeds 4.3 

million people. Surely there is enough room in this vast market for 

another tribe to benefit from gaming, especially an impoverished 

tribe. Last I checked, despite the recession and everything else that 

has been going on, Phoenix is still one of the fastest-growing cities 

in the Country. Again, surely in the fastest-growing cities, there is 

an opportunity for a growing gaming market, and opportunity for 

one more tribe to benefit from this vast market. 

The promise referenced in the title of S. 2670 is kind of ironic. 

It is not one that is known to me, and it certainly is not a Federal 

promise. The Federal promise was to take land into trust for 

Tohono O’odham anywhere in Pima, Pinal or Maricopa Counties, so 

long as it was not within an already-incorporated area of a municipality. In my mind, our trust responsibility demands that we keep 

our Federal promises. We have broken a lot of treaties and we have 

broken a lot of Federal promises to Indian people in the past. The 

only promise by the United States that is at issue here today is the 

one made in the Gila Bend Act. The only way the Federal Government can keep its promise to the Tohono O’odham is for this Committee to reject this bill. 

The Tohono O’odham property near Glendale presents an opportunity for another Indian tribe to share the wealth and open a new 

part of this gaming market. In the tight fiscal environment, that 

kind of economic development should be an imperative. Opening 

this facility would help make President Ronald Reagan’s dream 

5 

come true of using gaming to lift tribes out of poverty and help 

make them more self-sufficient. 

I will stand for your questions. Thank you, Chairman. 

[The prepared statement of Mr. Washburn follows:] 

PREPARED STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT SECRETARY—INDIAN

AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

Good afternoon, Chairman Tester, Vice-Chairman Barrasso, and Members of the 

Committee. My name is Kevin Washburn. I am the Assistant Secretary for Indian 

Affairs at the Department of the Interior (Department). I am here today to provide 

the Department’s testimony on S. 2670, the Keep the Promise Act of 2014, which 

is a bill that if enacted would prohibit Class II and Class III gaming activities on 

lands, within a defined ‘‘Phoenix metropolitan area,’’ acquired in trust by the Secretary of the Interior for the benefit of an Indian tribe after April 9, 2013, and until 

January 1, 2027. 

S. 2670 does not specifically identify a tribe or amend a particular law, but because of the subject matter of the bill, the Department concludes that this bill has 

a similar effect as a bill introduced in the 112th Congress involving the Tohono 

O’odham Nation (Nation) and the Nation’s 53.54 acre parcel in Maricopa County, 

Arizona, which the Department has acquired in trust for the Nation pursuant to the 

Gila Bend Indian Reservation Lands Replacement Act (Public Law 99–503) (Gila 

Bend Act). 

Because S. 2670 would amend the Gila Bend Act in a manner that significantly 

undermines the promises made by the United States in the Gila Bend settlement, 

the Department opposes S. 2670. 

Gila Bend Indian Reservation Lands Replacement Act 

The Nation is a federally recognized tribe located in southern and central Arizona. 

It has approximately 30,000 enrolled members, and has one of the largest tribal 

land bases in the country. 

The San Lucy District is a political subdivision of the Nation. It was created by 

Executive Order in 1882 and originally encompassed 22,400 acres of land. In 1960, 

the U.S. Army Corps of Engineers (Corps) completed construction of the Painted 

Rock Dam on the Gila River. Prior to construction, the Bureau of Indian Affairs 

(BIA) and the Corps assured the Nation that flooding would not impair agricultural 

use of lands within the San Lucy District. 

Despite these assurances, construction of the dam resulted in continuous flooding 

of nearly 9,880 acres of land within the San Lucy District, rendering them unusable 

for economic development purposes. Included among the destruction was a 750-acre 

farm that had previously provided tribal revenues. The loss of these lands forced 

a number of the Nation’s citizens to crowd onto a 40-acre parcel of land. 

Congress first moved to remedy the plight of the Nation’s San Lucy District in 

1982, when it directed the Secretary of the Interior to study the flooding and identify replacement lands within a 100-mile radius. After attempts to find replacement 

lands failed, Senators Barry Goldwater and Dennis DeConcini, along with then-Congressmen John McCain and Morris K. Udall, sponsored legislation to resolve the situation. In 1986, Congress enacted the Gila Bend Act to redress the flooding and loss 

of the Nation’s lands. 

The Gila Bend Act authorized the Nation to purchase private lands as replacement reservation lands and directed the Secretary of the Interior to take up to 9,880 

acres of unincorporated land in Pima, Pinal, or Maricopa Counties into trust for the 

Nation, subject to certain other requirements. In addition, Congress mandated that 

the land ‘‘shall be deemed to be a Federal Indian Reservation for all purposes.’’ In 

the accompanying 1987 agreement between the federal government and the Nation, 

the Nation gave up its right and title to 9,880 acres of land and approximately 

36,000 acre-feet of federal reserved water rights. 

Eventually, the Nation purchased a 53.54 acre parcel in Maricopa County, Arizona, and requested that the Secretary acquire the land in trust pursuant to the 

Gila Bend Act. On July 23, 2010, Assistant Secretary Echo Hawk issued a letter 

to Ned Norris, Jr., Chairman of the Tohono O’odham Nation, stating that the Nation’s request for the trust acquisition of this parcel satisfied the legal requirements 

of the Gila Bend Act and that the Department was obligated to, and therefore 

would, acquire the land in trust pursuant to Congressional mandate. This decision 

was remanded to the Department by the United States Court of Appeals for the 

Ninth Circuit for further consideration of the meaning of section 6(d) of the Act. On 

July 3, 2014, I made a final agency determination on behalf of the Department to 

6 

acquire the parcel in trust for the Nation. The land was acquired in trust—as required by law—on July 7, 2014. 

S. 2670 

S. 2670, the ‘‘Keep the Promise Act’’ would prohibit Class II and III gaming on 

any lands taken into trust for an Indian Tribe by the Secretary of the Interior, if 

those lands are within the ‘‘Phoenix metropolitan area,’’ as defined in Section 3 of 

S. 2670. The prohibition of Class II and Class III gaming on such lands taken into 

trust for an Indian Tribe would retroactively begin April 9, 2013, and expire on January 1, 2027. S. 2670 would negatively impact the Nation’s ‘‘all purposes’’ use of selected lands under the Gila Bend Act by limiting the Nation’s ability to conduct 

Class II and Class III gaming on such selected lands. 

Congress was clear when it originally enacted the Gila Bend Act in 1986, in which 

it stated that replacement lands ‘‘shall be deemed to be a Federal Indian Reservation 

for all purposes.’’ By this language, Congress intended that the Nation be permitted 

to use replacement lands as any other tribe would use its own reservation trust 

lands, namely ‘‘for all purposes’’ and presumably to include economic development. 

The Gila Bend Act was intended to remedy damage to the Nation’s lands caused 

by flooding from the construction of the Painted Rock Dam. The United States and 

the Nation agreed to the terms of the Gila Bend Act, which included restrictions 

on where and how the Nation could acquire replacement lands. S. 2670 would specifically impact the Nation’s Gila Bend Act by imposing additional restrictions beyond those agreed upon by the United States and the Nation 25 years ago. The Department cannot support legislation that specifically impacts an agreement so long 

after the fact. 

While the purpose of S. 2670 would be to restrict the Nation from conducting 

gaming on the 53.54 acre parcel in Maricopa County, Arizona, the effect of S. 2670 

is even broader. It would seem to reach most or all of the remaining selectable lands 

under the Gila Bend Act. 

S. 2670 would also alter established law that prohibits gaming, authorized under 

the Indian Gaming Regulatory Act (IGRA), on lands acquired by the Secretary into 

trust for the benefit of an Indian tribe after October 17, 1988, except in certain circumstances. The effect of this legislation would be to add a tribe-specific and areaspecific limitation to IGRA. 

Finally, the bill would unilaterally amend Arizona’s tribal gaming compacts without the mutual consent of the Tribes and the State. The language of the bill specifically and unilaterally modifies substantive terms such as Section 3(j)(1) (location of 

gaming facilities on Indian lands), Section 17(c) (Amendments) and Section 25 (entire agreement of the parties) in all of the Tribal-State Compacts in Arizona, which 

were duly negotiated by the State and the Tribal Nations. 

In the compacts, the parties themselves eliminated reliance on any statements or 

promises made during negotiations, unless they were included within the four corners of the compact. Section 25 of the compacts provides that this is ‘‘the entire 

agreement of the parties with respect to the matters covered by this compact and 

no other statement, or promise made by any party, officer, or agent of any party 

shall be valid or binding.’’ In other words, the promise to which the title of S. 2670 

refers seems to be illusory. 

We are further concerned that the provisions of S. 2670 may result in competitive 

restrictions favoring one tribe over another. This is a longstanding concern in the 

area of Indian gaming. In our April 25, 2003, letters to Governor Doyle of Wisconsin 

and Chairman Frank of the Forest County Potawatomi Community, we refused to 

affirmatively approve a proposed Class III gaming compact because we found a provision excluding other Indian gaming ‘‘anathema to basic notions of fairness in competition and inconsistent with the goals of IGRA.’’ Letter from Acting Assistant Secretary—Indian Affairs, Aurene Martin to Chairman, Forest County Potawatomi 

Community, Harold ‘‘Gus’’ Frank (Apr. 25, 2003). This legislation would negate and/ 

or amend Section 3(j)(1) of the Nation’s Tribal-State compact, without the Tribe or 

the State participating in the amendment and without regard to the agreement 

reached between two sovereigns. 

Historical Context with the Gila Bend Act and Indian Gaming 

It is important to understand the historical context of gaming at the time of passage of the Gila Bend Act. When Congress enacted the Gila Bend Act in 1986, it 

was well aware of the Indian gaming industry. By that time, Indian gaming was 

already quite controversial. Indian gaming legislation was introduced in Congress 

as early as 1984 and 1985. A good deal of litigation over Indian gaming had occurred in the late 1970s and early 1980s. Indeed, cases had been fully litigated 

through federal appeals courts with reported decisions by 1981. Federal litigation 

7 

was proceeding in California, Florida, Minnesota and Wisconsin in the early 1980s. 

In sum, gaming was spreading like wildfire across the country in the early and mid1980s. 

Fostering Indian gaming was a public policy choice by the Reagan Administration. 

President Reagan’s Department of the Interior strongly encouraged such development in hopes that gaming would help poor tribes become more self-sufficient. 

And though it was aware of gaming, Congress said nothing in the Gila Bend Act 

that would prohibit Tohono O’odham from gaming on lands acquired under the Act. 

Covered acquisitions, which were mandatory under that Act, included lands in Maricopa County. 

After enacting the Gila Bend Act, Congress held hearings that ultimately led to 

enactment of IGRA in 1988. In IGRA, Congress generally prohibited gaming on 

lands acquired after its enactment. But Congress specifically included an exception 

for lands taken in trust as part of a land settlement like those to be acquired under 

the Gila Bend Act. 

Given this course of action by Congress, the Nation would have had reason to believe that the United States had promised it land on which it could engage in gaming in compensation for the lands flooded by the Corps in the San Lucy District. 

And given that the Gila Bend Act and IGRA are laws enacted through a very public 

process in Congress, none of these expectations developed in secret. 

In the Gila Bend Act, Congress mandated the taking of land into trust for the 

Nation to make a mandatory acquisition of land in Maricopa, Pima or Pinal County, 

as long as the land was not ‘‘within the corporate limits of any city or town.’’ It is 

the Department’s view that, the promise made in the Gila Bend Act would be broken by S. 2670.’’ 

For these reasons, the Department opposes S. 2670. This concludes my prepared 

statement. I am happy to answer any questions the Committee may have. 

The CHAIRMAN. Thank you, Assistant Secretary Washburn. I 

know that Senator McCain has a conflict with his Foreign Affairs, 

I believe, so I will let him go ahead of me. 

Senator MCCAIN. Well, Mr. Washburn, you talk about impoverished tribes. Does that Tohono O’odham fit into that category, since 

they already have three casinos? 

Mr. WASHBURN. Yes, Senator, despite all that—— 

Senator MCCAIN. In other words, you just falsely gave the Committee the impression as if the Tohono O’odham was an impoverished tribe without Indian gaming. They have three casinos, right? 

Isn’t that true? 

Mr. WASHBURN. I didn’t mean to give the impression that they 

are not a gaming tribe, they indeed already are. But I will tell you 

that their gaming is in Tucson and Phoenix is a much larger market than Tucson. 

Senator MCCAIN. Well, they are certainly not impoverished, Mr. 

Washburn. 

Mr. Washburn, you said that that was the intent that Indian 

gaming not be located in incorporated areas, right? 

Mr. WASHBURN. Yes. 

Senator MCCAIN. Isn’t that kind of technical, because it is in the 

middle of the city of Glendale? Isn’t it sort of a technical—everything around it is incorporated. It is not out in the desert. 

Mr. WASHBURN. Senator, it was your bill. You wrote the language. We are just applying it. 

Senator MCCAIN. You know something, Mr. Washburn, that is a 

pretty smart ass answer. And the fact is, I am telling you what the 

intent was, okay? Now, we wrote the bill, and we wrote it so that 

there would not be exactly what has happened now. And if you 

want to interpret that way, fine. You can interpret how you want 

to. I interpret it as not ever intending to have a gaming operation 

in the middle of an incorporated area without the permission of the 

8 

people, not only in Glendale, because as you said, this is a large 

metropolitan area, but the people of the metropolitan area. They 

should have a say in this. 

You are not giving them a say in this. The city of Glendale has 

been split on this in various ways. 

So you are saying that one, that it is for impoverished tribes. 

Clearly, by any measurement, this tribe is not impoverished. Second of all, you say it was not the intent of the Act to be in incorporated areas. It is surrounded by incorporated areas, Mr. 

Washburn. And I can tell you what the intent is, and I believe that 

also it is your interpretation of the law versus my interpretation 

of the law. 

And I really appreciate your concern for impoverished tribes. I 

have that same concern. The Tohono O’odham tribe isn’t one of 

those. It isn’t one of those. They are doing very well with the three 

casinos that they have already. And there are established casinos 

within the Phoenix metropolitan area that this is going to impact. 

That is why the other tribes are against such a move, which would 

then impact their gaming operations and revenue. Has that been 

taken into consideration in your decision, the impact on other Native American tribal gaming? 

Mr. WASHBURN. As I said, Senator, this is a rapidly-growing 

market. It continues to be one of the fastest-growing cities in the 

Country. We certainly have a trust responsibility to all the tribes. 

Senator MCCAIN. So it is up to you to decide whether an area 

is fast-growing or not, as to whether, what guides your decision? 

Mr. Washburn, that has nothing to do with the law. 

Mr. WASHBURN. It is my responsibility to follow the law and follow what Congress said. And what you said was, outside of any 

municipality, incorporated municipality, anywhere in Maricopa 

County. And that is what we read. And that is relatively clear. 

That is what we determined and that is what the courts have 

upheld. We believe that they are a tribe that has significant burdens. They are one of the largest tribes in the Country, they have 

roughly 40,000 members and they have a lot of land to try to take 

care of with a modest revenue source. 

Senator MCCAIN. Three casinos is a modest revenue source. 

Mr. WASHBURN. Given their burdens, yes, Senator. This is not a 

tribe with 30 people or 300 people, this is a very, very large tribe 

with a lot of responsibilities. I can assure you, they can use more 

revenues. 

Senator MCCAIN. I am sure every tribe in America can use more 

revenue. 

So you are basing your decision as to what, are you saying they 

are impoverished? Are you saying they are impoverished? Because 

you said, you are referring to impoverished tribes. Are you saying 

that this tribe is impoverished? 

Mr. WASHBURN. I want gaming to benefit all tribes. But yes, I 

am willing to live with the fact that Tohono O’odham is an impoverished tribe. It has a large number of members and many of them 

are living in very terrible conditions. 

Senator MCCAIN. And are you aware of the gaming revenues 

from the three casinos? 

9 

Mr. WASHBURN. I have heard there are gaming revenues from 

three casinos. I don’t have them in front of me as I sit here. 

Senator MCCAIN. Do you know what they are, roughly? 

Mr. WASHBURN. No. 

Senator MCCAIN. So it doesn’t matter to you what, obviously 

since you don’t know, it doesn’t matter to you what it is. So you 

are making a judgment as to the economic condition of the tribe 

without knowing what their revenues are. That is really, really 

good, Mr. Washburn. I don’t have any more questions for this witness. 

The CHAIRMAN. Assistant Secretary Washburn, the Department 

approves Class III tribal-State gaming compacts. I believe that the 

Department has approved the latest compacts between the State of 

Arizona and the Arizona tribes. Do you know if the compacts currently in effect have any type of limitation of facilities in the Phoenix area? 

Mr. WASHBURN. They do not have any limitations as to the number of facilities in the Phoenix area. 

The CHAIRMAN. You mention in your testimony the Department 

does not support the bill, as it would undermine promises made by 

the United States to the Tohono O’odham Nation and the Gila 

Band Indian Reservation Land Replacement Act. I want you to describe, if this bill were enacted, could you describe the policy implications that it might have on future negotiations and settlements 

between tribes in the United States? 

Mr. WASHBURN. Well, the potential is that we will have tribes 

feeling this is the same stuff, a different day, that we are just continuing in the mode of breaking treaties and breaking promises to 

tribes. That is a tough situation to be in, because I had hoped we 

were past all that and that we were working to live up to our 

promises to Indian tribes going forward. So this would significantly 

undermine the promise that we made to Tohono O’odham in the 

Gila Bend Act and I think that would cause tribes to have great 

pause in settling with the United States Government if it doesn’t 

live up to its promises. 

The CHAIRMAN. So you believe that the Gila Bend Act gave the 

Tohono O’odham the authority? 

Mr. WASHBURN. I believe it gave them the opportunity to take 

land into trust anywhere in Pima, Pinal and Maricopa Counties 

and with some caveats, one of the caveats being it couldn’t be already incorporated land. So they went out and bought land that 

was not incorporated, but was in Maricopa County. And if we add 

requirements to that, we have changed the promise, we have 

changed the deal that we struck with Tohono O’odham. 

Senator MCCAIN. Did that act refer, anywhere in it, any reference to gaming? 

Mr. WASHBURN. It had no prohibition on gaming whatsoever. 

Senator MCCAIN. Did it have any reference to gaming? 

Mr. WASHBURN. It said that lands could be used for all purposes. 

Senator MCCAIN. So it made no reference to gaming itself. 

Mr. WASHBURN. All purposes encompass gaming. 

Senator MCCAIN. I see. 

The CHAIRMAN. Assistant Secretary Washburn, some of the witnesses’ testimony that we are going to hear today talks about posVerDate Mar 15 2010 09:56 Feb 24, 2015 Jkt 091740 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 S:\DOCS\91740.TXT JACK
10 

sible violations in the Arizona tribal compacts, whether by the 

Tohono O’odham project itself or by possible repercussions if the 

Tohono O’odham project is allowed to proceed. What role does the 

Department play in instances where the tribe or a State violates 

provisions of the compact? 

Mr. WASHBURN. Well, first of all, we approve those compacts. So 

we stamped approval on those compacts. And those compacts 

would, the provisions would be violated by this statute and would 

change, again, the terms of those compacts. So there are potential 

provisions for violations of gaming compacts. I am not sure what 

the steps would be for the United States to take for those violations. 

One of the compact’s terms was that this compact, the final 

agreement for the parties on these issues, and introducing new 

terms after everybody agreed that they have agreed on all the 

terms, is definitely a change in the promise. 

The CHAIRMAN. Okay. Do you have any more questions, Senator 

McCain? 

Senator MCCAIN. No, thank you, Mr. Chairman. 

The CHAIRMAN. Thanks, Secretary Washburn. We appreciate 

your taking time out of your schedule to be here today. 

We will give the staff a moment to reset the witness table. The 

witnesses can come up at this time. 

I want to welcome our second panel up to the witness table. We 

will first hear from Governor Gregory Mendoza, the Gila River 

Pima Maricopa Community. Then we will turn it over to Mayor 

Jerry Weiers, City of Glendale. Welcome back, Mayor. 

We will then hear from Gary Sherwood, Glendale city councilman. And finally, we are going to hear from Chairman Ned Norris 

of the Tohono O’odham Nation, and we welcome you back as well, 

Mr. Chairman. 

Thank you all for being here today. Governor Mendoza, we shall 

start with you. Go ahead. 

STATEMENT OF HON. GREGORY MENDOZA, GOVERNOR, GILA 

RIVER INDIAN COMMUNITY; ACCOMPANIED BY ALLISON C. 

BINNEY, PARTNER, AKIN GUMP STRAUSS HAUER & FELD 

LLP 

Mr. MENDOZA. Good afternoon, Chairman Tester, members of the 

Committee. Thank you for holding this hearing and inviting me to 

speak in support of the Keep the Promise Act. 

I want to start by saying that it pains me to advocate against 

a sister tribe. But this is not a dispute with the O’odham people, 

only with the leadership of the Tohono O’odham Nation, whose actions jeopardize every tribe in Arizona. Contrary to what Tohono 

O’odham claims, this is not a fight about market share. It is about 

preventing fraud upon tribes, local governments and voters. 

Tohono O’odham likes to talk about the promises made between 

their tribe and the Federal Government in 1986. But this bill is 

about protecting the promise made to my community and to other 

tribal governments. Our tribes relied upon the actions of the 

Tohono O’odham when we gave up our rights in 2002. While we 

agree that Tohono O’odham should get replacement lands under 

11 

the 1986 law, we also strongly believe that Tohono O’odham must 

abide by the promise and commitments they made to us. 

In 2002, Arizona tribes had to get approval of our compact from 

the voters. In order to get this approval we promised the voters 

that the number of casinos in the Phoenix metro area would not 

increase until 2027. At the same time that Tohono O’odham helped 

us win voter approval, they also were secretly plotting to build a 

casino in Phoenix. That casino would be located right across the 

street from a high school, and it is near homes and churches. This 

is exactly what we promised the voters would not happen. Tribes 

like mine gave up rights to build additional casinos. We also agreed 

to limits on the number of gaming machines allocated to us. 

We did this in order to get voter approval and to preserve the 

tribal monopoly on gaming in Arizona. And we ensured that rural 

tribes benefit from gaming. 

Tohono O’odham doesn’t deny making promises, nor do they deny 

knowing that their sister tribes gave up rights in order to limit the 

number of casinos in Phoenix. They don’t deny that the compact 

negotiations would have been vastly different if everyone knew of 

their plans. Instead, they say they are winning in the courts. There 

remains a dispute because they refuse to waive their sovereign immunity for claims of fraud. 

We do not want to attack another tribe’s immunity. That is why 

the bill merely provides for a temporary restriction on additional 

casinos in the Phoenix area until the end of the existing compacts. 

At that point, all parties can come together at the table and bargain in good faith. Hopefully my community will be able to regain 

the rights we gave away. 

The Gila River Indian Community will weather this storm. But 

most tribes in Arizona are not as fortunate. Rural tribes will suffer 

the most from Tohono O’odham’s fraud. There are six rural tribes 

that utilize gaming compacts to lease gaming machines to urban 

tribes. Leasing these machines allows them to benefit from gaming, 

even though their markets can’t support a casino. 

Each year, these tribes receive more than $30 million to provide 

basic services to their members. And the structure of the gaming 

compacts create markets for a few rural tribes to operate small casinos. If gaming happens at Glendale, the State legislature will 

likely eliminate that tribal monopoly. If this happens, urban tribes 

will have no reason to lease gaming machines from rural tribes. 

Patrons will stop traveling to reservations for gaming and instead 

visit non-tribal casinos located in cities. 

We have come to Congress because you are the only entity that 

can provide swift action to preserve the promises made in 2002. Interior indicates it cannot resolve this matter because Congress, 

through the 1986 law, mandates them to take the land into trust 

for Tohono O’odham. This bill does not set that precedent. It is 

common for Congress to pass bills that limit tribal gaming. In this 

Congress alone, two bills have been enacted placing land into trust 

for a tribe, but prohibiting gaming on those lands. The bill merely 

restricts gaming on the lands until 2027, but does not eliminate the 

uses of the land. There are a number of non-gaming activities that 

Tohono O’odham could conduct. 

For all of these reasons, I ask that you pass this bill. Thank you. 

12 

[The prepared statement of Mr. Mendoza follows:] 

PREPARED STATEMENT OF HON. GREGORY MENDOZA, GOVERNOR, GILA RIVER INDIAN

COMMUNITY

Chairman Tester, Vice Chairman Barrasso and members of the Committee, I 

want to thank you for inviting me to testify on behalf of the Gila River Indian Community (Community) regarding S. 2670, the Keep the Promise Act of 2014. Swift 

enactment of this overwhelmingly bipartisan legislation is critical to protecting the 

existing system of tribal gaming in Arizona. That system is now under threat because the Tohono O’odham Nation (Tohono O’odham or Tribe) has broken ground 

on a casino project in the Phoenix metropolitan area that would unilaterally destroy 

the commitment made byArizona tribes that there would be no additional casinos 

in that area until 2027. 

In July, the Committee heard extensive testimony about why the Keep the Promise Act is necessary to protect the future of Indian gaming in Arizona. There was 

testimony about how Tohono O’odham used negotiations for the current tribal-state 

compact in Arizona to advance a secret plot to open a casino in Phoenix while telling 

the State officials and Arizona voters that there would be no more casinos in that 

very area. The Committee also heard how Arizona’s desire to limit gaming in urban 

areas was exploited by Tohono O’odham, which recognized that tribes like the Community agreed not to open new casinos in Phoenix. Now, we also know that Tohono 

O’odham kept their plans secret for almost a decade while the State, local cities, 

and Arizona tribes relied and invested millions of dollars based upon the commitment of no additional casinos in the Phoenix metropolitan area. 

By prohibiting gaming on tribal lands acquired in trust status after April 9, 2013 

within the Phoenix metropolitan area until January 1, 2027, this bill maintains the 

commitments and promises that were relied upon during negotiations of the current 

gaming compacts for the duration of those compacts, which begin to expire in late 

2026. It must be clearly understood that the bill does not prohibit Indian gaming 

on the lands beyond the sunset date of January 1, 2027 and does not prevent lands 

from being taken into trust status for Indian tribes. At its core, S. 2670 is a bill 

that would protect the agreed upon system of Indian gaming in Arizona and would 

prevent fraud from being committed upon tribes, local governments, and voters. 

Tohono O’odham has been trying to open a casino far outside its aboriginal territory 

and within the Phoenix metropolitan area since 2002 when it promised the State, 

voters, and Arizona tribes that there would be no additional casinos in this area. 

The promise is important because the voters of Arizona authorized a system of gaming in 2002 when the tribes essentially obtained a legal monopoly on gaming in the 

State, a monopoly that has benefited all Indian tribes in the State, gaming and nongaming. But in return, the voters wanted to set a hard cap of seven casinos that 

would be in the Phoenix metropolitan and no more. Additionally, the voters wanted 

certainty about the potential proliferation of gaming, and thought that they had 

achieved that certainty by limiting gaming to Indian tribes on Indian reservations 

as they existed at the time of their vote in 2002. 

To be clear, no one is trying to prevent Tohono O’odham from acquiring replacement lands pursuant to the 1986 Gila Bend Indian Reservation Lands Replacement 

Act (‘‘Gila Bend Act’’), Pub. L. 99–503. But, we do believe that such replacement 

lands should be within the aboriginal territory of Tohono O’odham and that the 

Tribe should not be able to utilize the 1986 law to violate the commitments and 

promises relied upon during the negotiations of the existing gaming compacts in Arizona. 

Contrary to the testimony of Tohono O’odham, S. 2670 would not create liability 

for the United States or constitute an unlawful taking that would trigger constitutional protection because it is well within Congress’ plenary power over Indian affairs to defend and protect the promises that tribes publicly make to obtain gaming. 

There is no Fifth Amendment right for tribes to violate their own promises on which 

other tribes and the State have relied. The Fifth Amendment does not curtail 

Congress’s authority to protect the compacting process from broken promises and 

misrepresentations. To suggest otherwise is disingenuous. S. 2670 was narrowly 

crafted to preserve promises made during the negotiation of the existing tribal-state 

compact and to clarify them in a manner that is consistent with federal precedent 

related to the regulation of gaming on Indian lands. 

We have come to Congress because you are the only entity that can provide justice in this situation. Congress allowed tribes to be sued for violations of gaming 

compacts once they are signed. Unfortunately, Congress did not anticipate situations like this, where a tribe commits fraud during compact negotiations. Further, 

13 

the Interior Department indicates that they cannot resolve this matter because Congress, through the 1986 law, mandates them to take the Phoenix area land into 

trust for Tohono O’odham. 

We wish we did not have to come to Congress to address this matter, but we are 

here because you are our only option. 

The Keep The Promise Act Protects All Arizona Tribes 

The policy objective of the Keep the Promise Act is simple, to preserve the existing model tribal-state compact that all Arizona tribes agreed to abide by and game 

under. Arizona’s model compact is unique because it struck a delicate balance between the competing interests of the Governor, who wanted to stop the spread of 

gaming in cities, and Tribes, who wanted tribal exclusivity for gaming. Under the 

model compact the Governor agreed to tribes’ exclusive right to conduct casino gaming provided certain conditions were met. These conditions include: (1) overall limits 

on the number of gaming devices and casinos; (2) a maximum number of gaming 

devices per casino; (3) specific limits on the number of casinos located in or near 

Phoenix and Tucson; (4) revenue-sharing arrangements between rural tribes with 

no casinos and tribes with casinos in urban markets; and (5) revenue-sharing arrangements between the State and Arizona tribes. 

Importantly, in return for rural tribes agreeing to limits on gaming in the Phoenix 

and Tucson metropolitan areas, and for giving up an opportunity to seek off-reservation gaming near these lucrative markets, they are able to share in gaming revenues generated in these markets through machine transfer agreements (i.e., lease 

their machine rights to urban tribes). As a result, the rural non-gaming tribes receive revenues from gaming tribes located in the metropolitan markets. There are 

six tribes in Arizona that currently benefit under machine transfer agreements: 

Havasupai, Hualapai, Kaibab-Paiute, Navajo, San Juan Southern Paiute, and Zuni. 

As tribes that struggle with severely limited economic opportunities, these funds are 

essential to many of the rural tribes. Each year, these tribes receive a combined 

amount that exceeds $30 million to provide basic services to their tribal members. 

These tribes rely on stable machine transfer revenue and stand to be hurt the most 

by Tohono O’odham’s proposal. 

Although the impact of Tohono O’odham’s proposed casino will reverberate 

throughout Arizona, it will be felt most severely by these rural tribes who depend 

on revenue from transfer agreements that are only possible because through the 

model compact. These rural tribes are concerned about the Tohono O’odham’s casino 

because of another feature of the model compact that is commonly referred to as 

a ‘‘poison pill.’’ This provision essentially states that if the tribal gaming monopoly 

is disrupted in any way—i.e., if Arizona expands gaming to private non-Indians interest—tribes may then operate casinos free of any conditions imposed upon them 

by the model compact. If non-tribal gaming is authorized, then the existing caps on 

facilities and machines will disappear and there will be no requirement or reason 

for urban tribes to lease machines from, and share revenue with, rural tribes. 

Rural tribes will not be the only tribes hurt if non-tribal gaming is authorized in 

Arizona. Small market gaming tribes will also suffer because gaming consumers 

would stop traveling to reservations for gaming, and would instead visit non-tribal 

casinos, which will likely be located in cities. 

Commercial gaming interests have been clamoring to expand into Arizona since 

the 1990’s and have long targeted tribal exclusivity as an argument in favor of their 

efforts. As Glendale Mayor Jerry Weirs told this Committee in July, ‘‘if gaming happens in Glendale, there will be a strong effort in the Arizona legislature to authorize 

non-Indian gaming in the State.’’ It isn’t just a position held by Mayor Weiers. 

There have been numerous bills introduced in the Arizona legislature in recent 

years to authorize non-tribal gaming, as well as a steady stream of editorials and 

articles calling for an end to tribal gaming exclusivity. The bottom line is that 

tribes, Arizona citizens, and commercial gaming interests view Tohono O’odham’s 

plan as breaking all Arizona tribes’ solemn promise not to open new casinos in the 

Phoenix metropolitan area under the current model compact. The opening of the 

Glendale casino will destroy Arizona tribes’ credibility among voters and lawmakers, 

and will be used to justify the end of tribal exclusivity. 

The Community will be negatively impacted if the Tohono O’odham opens up one 

or more casinos in the Phoenix-metro area. If the Tohono O’odham is successful we 

will have to make budget cuts that will impact our general welfare programs and 

employment opportunities for our members. These cuts will be especially severe if 

non-tribal gaming is also authorized. However, the Community will be able to 

weather the storm far more easily than rural non-gaming tribes who rely most on 

the current revenue sharing system. 

14 

11T3ASee Ariz. Rev. Stat. Ann. § 5–601(C) (prohibiting the Governor from concurring in any 

determination by the Secretary that gaming may be permitted on Indian lands within Arizona 

under 25 U.S.C. § 2719(b)(1)(A)); see also 25 U.S.C. § 2719(b)(1)(A) (permitting gaming on Indian 

lands acquired in trust after October 17, 1988 where the Secretary consents and the Governor 

of the state in which the Indian lands are located subsequently concurs that gaming may take 

places on the lands in question). 

In contrast to all other Arizona tribes, Tohono O’odham has a strong incentive to 

end the conditions under the model compact. Tohono O’odham maintains that it can 

operate all of its casinos in Phoenix metropolitan area. If the Tribe successfully establishes one casino in the Phoenix area and subsequently moves the rest of its existing casinos to the area, it would not want market parity. Instead, it would want 

to create large mega-casinos to dominate the market. Tohono O’odham can accomplish market domination if the limitations in the model compact regarding the number of gaming machines in each casino go away. 

Given Tohono O’odham’s established gaming presence and its ability to unilaterally cherry-pick strategic locations in the area, it would have an overwhelming head 

start in any race to establish new gaming facilities in the area should gaming expand to include non-Indian interests. Thus, it would be entirely in Tohono 

O’odham’s interest to have the ‘‘poison pill’’ provision triggered and eliminate restrictions on tribal gaming altogether. Tohono O’odham would then be the only tribe 

in Arizona able to compete with non-Indian gaming interests on equal footing. 

Because Arizona law does not allow two-part determinations, 1 all other tribes 

would have difficulty competing in this new market and would be forced to attempt 

to relocate to the urban markets under dubious legal theories or face massive losses 

in revenue. With Tohono O’odham dominating the Phoenix market, while at the 

same time facing competition from non-Indian gaming interests, all other Arizona 

tribes would either suffer drastic cuts to tribal member services, or could be forced 

to shutter their gaming facilities altogether. The latter is especially true for the outlying small market tribes. Gaming competition among tribes would not increase; 

rather, Tohono O’odham would become the sole winner among Arizona tribes. 

The Keep The Promise Act Would Not Create Negative Precedent 

The Keep the Promise Act does not jeopardize tribal sovereignty nor create negative precedent for Indian Country. Congress routinely creates laws that restrict the 

ability of tribes to conduct gaming through several types of legislation. The Department often supports these bills even though they include the explicit limitations on 

an affected tribe’s right to game. Accordingly, any arguments that S. 2670 constitutes dangerous precedent are inconsistent with common Congressional practice 

and are without merit. 

Congress has enacted these clarifications through statutes intended to shed light 

on earlier legislation and settlements, prohibitions included in land-into-trust transfers, and restrictions included in federal recognition and restoration legislation. In 

2011, Congress enacted the Indian Pueblo Cultural Center Clarification Act, which 

amended Public Law 95–232. The clarification repealed language in an early statute 

and provided that lands acquired in trust for certain Indian Pueblos would be treated as Indian Country, except for the purpose of gaming under the Indian Gaming 

Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq. Three years earlier, in 2008, Congress clarified the Mashantucket Pequot Settlement Act to provide for the extension 

of leases of the Tribe’s land but provided that ‘‘No entity may conduct any gaming 

activity (within the meaning of section 4 of the Indian Gaming Regulatory Act (25 

U.S.C. 2703)) pursuant to a claim of inherent authority or any Federal 

law . . . . on any land that is leased with an option to renew the lease in accordance with this section.’’). In 1978, Congress settled the Narragansett Tribe’s land 

claims through the Rhode Island Indian Claims Settlement Act, which did not include a provision regarding gaming. 25 U.S.C. § 1701 et seq. Congress subsequently 

amended the Rhode Island Claims Settlement Act in 1996 to unilaterally clarify 

that lands acquired by the Narragansett pursuant to the Settlement Act ‘‘shall not 

be treated as Indian lands’’ for the purpose of gaming under IGRA. 25 U.S.C. 

§ 1708(b). The practice of amending existing agreements has persisted until today. 

Congress has also passed numerous tribe-specific and area-specific laws to restrict 

gaming in recent years. In 2012, Congress enacted Public Law 112–97 to provide 

lands that would ensure flood and tsunami protection for the Quileute Indian Tribe. 

The law transferred lands to the tribe in trust but stipulated that the tribe may 

not use the land for any commercial purposes and may not build any commercial 

or permanent structures on the land. This prohibition has the effect of preventing 

the tribe from exercising its right to game on the land. Two years earlier, Congress 

passed the Hoh Indian Tribe Safe Homelands Act, Public Law 111–323, which 

15 

transferred federal and non-federal land to the Hoh Indian Tribe. The legislation 

specifically provided that ‘‘[t]he Tribe may not conduct on any land taken into trust 

pursuant to this Act any gaming activities—(1) as a matter of claimed inherent authority; or (2) under any Federal law . . . . ’’ 

This continues to be a consistent practice of Congress and is one that the Department has vocally supported in the past. This Congress alone, there have been two 

laws enacted to place lands in trust on behalf of Tribes while simultaneously prohibiting the benefitting Tribes from using the lands for gaming. Public Law 113–127, 

which placed Federal land in trust for the benefit of the Shingle Springs Band of 

Miwok Indians stipulates that ‘‘class II and class III gaming under the Indian Gaming Regulatory Act (25 U.S.C. § 2701 et seq.) shall not be permitted at any time on 

the land taken into trust.’’ The Department testified in support of the bill despite 

its prohibition on gaming. Separately, Public Law 113–134, the Pascua Yaqui Tribe 

Trust Land Transfer Act, placed Federal land into trust for the benefit of the Pascua 

Yaqui Tribe while stipulating that ‘‘The Tribe may not conduct gaming activities on 

the lands held in trust under this Act, as a matter of claimed inherent authority, 

or under the authority of any federal law . . . . ’’ 

These examples demonstrate that it is appropriate and routine for Congress to 

enact legislation to clarify earlier statutes and limit gaming pursuant to IGRA in 

appropriate circumstances. Given the near universal opposition to the proposed 

Glendale casino, the Keep the Promise Act will not create harmful precedent and 

is in line with Congress’s role in legislating in Indian Country to accurately reflect 

congressional intent. Rather, bad precedent would be created by allowing Tohono 

O’odham to operate a casino that puts all other Arizona tribes at risk. 

The Keep the Promise Act Does Not Create Liability for the United States 

Tohono O’odham contends that S. 2670 would subject the United States to a Fifth 

Amendment Takings Claim. This objection is premised on notion that when Arizona 

tribes obtained IGRA compacts by promising not to attempt to use those compacts 

to locate any additional casinos in the Phoenix area, the Fifth Amendment somehow 

protects their right to violate that very promise. This could not be further from the 

truth. It should go without saying that Congress does not abrogate gaming compacts 

or affect a Fifth Amendment taking when it defends and protects the promises 

tribes made publicly to obtain the compacts. Neither gaming compacts nor the Gila 

Bend Act include an inherent right to profit from States’ and tribes’ detrimental reliance on a tribe’s promises during the compacting process. Simply put, there is no 

Fifth Amendment right for tribes to commit fraud while violating their own promises. The Fifth Amendment does not limit Congress’ authority to preserve the integrity of IGRA’s compact process from illegality. 

Nonetheless, Tohono O’odham argues that S. 2670 will give rise to a successful 

takings claim against the United States, a claim that the Assistant Secretary was 

not willing to embrace during his response to the Committee’s questions during the 

July 2014 hearing. Such a claim would argue that S. 2670 constituted ‘‘regulatory 

taking’’ by depriving TON of an economic use of its land and interfering with an 

investment-backed expectation. As a threshold matter, the Fifth Amendment’s Taking Clause generally applies to federal actions that affect Indian property rights formally recognized by Congress. See generally 1–5 Cohen’s Handbook of Federal Indian Law § 5.04[2][c]. However, the Supreme Court’s opinion in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), established a multifactor 

analysis for courts to consider when weighing a regulatory taking claim. The Penn 

Central test has spawned different categories of regulatory takings but it is highly 

unlikely that TON could successfully argue that S. 2670 fits into any one of these. 

Penn Central requires an ad hoc factual inquiry based on three factors: (1) ‘‘‘the 

character of the governmental action’’’; (2) ‘‘[t]he economic impact of the regulation 

on the claimant’’; and (3) ‘‘the extent to which the regulation has interfered with 

distinct investment-backed expectations.’’ Lingle v. Chevron U.S.A. Inc., 544 U.S. 

538–539 (alteration in original (quoting Penn Central, 438 U.S. at 124). Mindful of 

Justice Holmes’s oft-cited admonition that ‘‘[g]overnment hardly could go on if to 

some extent values incident to property could not be diminished without paying for 

every such change in the general law[,]’’ Mahon, 260 U.S. at 413, courts historically 

have applied Penn Central’s inquiry stringently. 

First, the character of the governmental action that would give rise to TON’s taking claim would likely weigh against an unconstitutional taking. S. 2670 was narrowly crafted so TON may still use the Glendale Parcel for commercial gain or otherwise, even if it cannot operate Class II or III gaming activities on the property. 

The proximity of the Glendale Parcel to the Arizona Cardinals stadium will allow 

Tohono O’odham to pursue a wide variety of lucrative economic development activities that will bring significant revenue. Viewed from that perspective, the legislation 

16 

is more akin to a zoning regulation restricting a particular land use, which tends 

to withstand a Takings Clause challenge. See generally Village of Euclid v. Ambler 

Realty Co., 272 U.S. 365 (1926). 

Moreover, here Congress is effectively regulating gambling in the public interest. 

The Supreme Court has long recognized the regulation of gambling to be a traditional exercise of police power. See Lawton v. Steele, 152 U.S. 133, 136 (1894). And 

under a much older Takings Clause regime, it has held that ‘‘‘acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though these consequences may impair its use,’ do not constitute a taking 

within the meaning of the constitutional provision, or entitle the owner of such 

property to compensation from the state or its agents, or give him any right of action.’’ Mugler v. Kansas, 123 U.S. 623 (1887) (discussing prohibition of alcohol). It 

is of great consequence for purposes of this analysis that Congress has already 

placed substantial limits on Indian gaming unless done in accordance with the 

IGRA. If allowing gaming pursuant only to IGRA’s strictures is Congress’s baseline 

approach, then S. 2670 is consistent with that public policy insofar as it closes a 

loophole in IGRA that is only available to TON through its bad faith negotiations 

with other parties. 

Second, the economic impact of the regulation would clearly be significant but Supreme Court decisions have ‘‘long established that mere diminution in the value of 

property, however serious, is insufficient to demonstrate a taking.’’ Concrete Pipe & 

Products of Cal., Inc. v. Construction Laborers Pension Trust for S. Cal., 508 U.S. 

602, 645 (1993). Indeed, the Supreme Court has noted that a diminution in property 

value as high as 75 percent or even 92.5 percent may not be a sufficiently serious 

impact. Id. at 645. Because the Glendale Parcel can be put to a range of other profitable uses, a court may well give less weight to the impact of precluding Class II 

and III gaming activities. It is also relevant to this analysis that S. 2670 is temporally limited so any economic impact on Tohono O’odham’s ability to use the Glendale Parcel for gaming would terminate on January 1, 2027 when all Arizona tribalstate compacts will need to be re-negotiated. Further, S. 2670 would not prevent 

Tohono O’odham from developing a fourth casino anywhere outside of the Phoenix 

metropolitan area. These points illustrate how the Keep the Promise Act was drafted to avoid a permanent impairment of any economic development opportunities, including gaming, so any action challenging the Keep the Promises Act would likely 

fail to demonstrate a credible Takings Claim. 

Third, it is unlikely that TON will be able to establish that its investment-backed 

expectations rise above a ‘‘unilateral expectation or an abstract need,’’ which would 

be critical to establishing a Takings Claim. Ruckelshaus v. Monsanto Co., 467 U.S. 

986, 1005 (1984) (citation and quotation marks omitted). Several courts have recognized that gambling is a highly regulated industry and that it is difficult to hold 

reasonable investment-backed expectations in light of that regulation. See, e.g., 

Holliday Amusement Co. of Charleston, Inc. v. South Carolina, 493 F.3d 404, 411 

(4th Cir. 2007) (holding no taking of slot machine property where South Carolina 

banned video poker after 25 years of allowing it because ‘‘Plaintiff’s participation in 

a traditionally regulated industry greatly diminishes the weight of his alleged investment-backed expectations’’); Hawkeye Commodity Promotions, Inc. v. Vilsack, 

486 F.3d 430, 442 (8th Cir. 2007) (holding multi-million ‘‘devastating economic impact’’ of ban on TouchPlay machines to be ‘‘discounted’’ by ‘‘heavily regulated nature 

of gambling in Iowa). Tohono O’odham was well aware of the inherent riskiness of 

gaming ventures when they purchased the Glendale Parcel. This is likely why the 

parcel was purchased and kept secret until a more favorable political environment 

improved the likelihood of success for their scheme. The attenuated timeline of this 

project epitomizes the highly speculative nature of gaming projects. 

Again, it would be difficult for TON to argue that IGRA and the 2002 Compact 

guarantee a right to game on the Glendale Parcel. The Gila Bend Act and its corresponding settlement agreement did not give Tohono O’odham a right to violate its 

own subsequent promises in the compacting process. The Gila Bend Act is silent 

with respect to gaming and it was also enacted two years before IGRA. Further, no 

one can make the credible argument that by regulating Las Vegas style gaming and 

making it subject to the Tribal-State compacting process, that IGRA constituted a 

breach of contract or a taking of federally recognized tribes’ inherent right to game 

on tribal lands. Congress could preclude Indian gaming altogether and has already 

enacted IGRA to establish that tribal gaming is permissible only ‘‘if the gaming activity is not specifically prohibited by Federal law,’’ 25 U.S.C. § 2701(5), and it contains several restrictions as to the location of gaming facilitates. All of that at least 

arguably puts tribes on notice that Congress may at any time enact additional restrictions on tribal gaming. Moreover, the 2002 Compact—which was negotiated between the Tribes and the State of Arizona—could not estop Congress from altering 

17 

2State of Ariz. v. Tohono O’odham Nation,, slip op. at 26–27 (D. Ariz. May 7, 2013). 

IGRA. Cf. Sioux Nation, 448 U.S. at 410–411 (affirming Congress’s power to abrogate treaties with tribes). Simply put, ‘‘[t]he pendulum of politics swings periodically 

between restriction and permission in such matters [as gambling], and prudent investors understand the risk.’’ Holliday Amusement, 493 F.3d at 411. Nothing in the 

Gila Bend Act bestowed any absolute right to locate a casino on Indian lands in 

Phoenix—much less did it enshrine a right to violate promises Tohono O’odham and 

other tribes later made in pursuit of IGRA compacts with Arizona in 1993 and 2002. 

IGRA, not the Gila Bend Act, defines the boundaries of Indian gaming authority, 

and just as Congress enacted limitations on such gaming in IGRA, it can legislatively protect the IGRA compacting process from the corrosive and profoundly destabilizing effect of unkept promises made to obtain a compact. 

In sum, there are considerable arguments against the viability of a Takings 

Clause challenge to S. 2670 that stem from the narrow scope of the legislation, arguments that the Assistant Secretary seemed to tacitly acknowledge when he responded to the Committee’s inquiries on the issue. The limited nature of the government’s restriction, the continued economic viability of the Glendale Parcel, and the 

highly regulated nature of gaming present significant barriers to a regulatory taking 

claim. 

S. 2670 Would Not Impact Pending Litigation 

Tohono O’odham likes to tell Members of Congress to let the ongoing litigation 

run its course before taking any action on this matter. However, the Tribe fails to 

tell those very same Members that the courts are unable to adjudicate the essential 

claims in this matter because Tohono O’odham refuses to waive its sovereign immunity. Thus, S. 2670 would not interfere with ongoing litigation and Congress is the 

only entity that can resolve this issue. 

Two lawsuits were brought after Tohono O’odham announced its intention to acquire lands into trust for an off-reservation casino in 2009. One lawsuit challenges 

the Tribe’s ability to have the lands taken into trust status as an Indian reservation, and that lawsuit is near completion. The other lawsuit alleges that Tohono 

O’odham wrongfully induced the relevant parties to enter into the compact and is 

violating the compact. While the courts have been able to review certain claims with 

respect to the express terms contained within the gaming compact, the courts have 

been thwarted by Tohono O’odham from addressing the claims of fraud, misrepresentation, or promissory estoppel because the Tribe asserted tribal sovereign immunity with respect to those claims. Tribal sovereign immunity is a legal doctrine providing that Indian tribes are immune from judicial proceedings without their consent or Congressional waiver. Congress waived tribes’ sovereign immunity in IGRA 

with respect to claims for violations of a compact once the compact is signed, but 

IGRA does not waive a tribe’s sovereign immunity for actions that occurred prior 

to the signing of the compact. Since Tohono O’odham refused to waive its sovereign 

immunity with respect to the claims of fraud, misrepresentation and promissory estoppel, which occurred prior to the signing of the compact, the court was unable to 

consider those claims. It would be odd for a gaming compact to waive tribal sovereign immunity in anticipation of acts of fraud and misrepresentation, or wrongful 

inducement. Sadly, the 2027 Arizona compacts may require that very thing solely 

as a result of the actions of Tohono O’odham here. 

It is these court dismissed claims that S. 2670 seeks to remedy. And, in its May 

7, 2013 order the Federal District Court for the District of Arizona found that although evidence appears to support the promissory estoppel claim against Tohono 

O’odham, the court had to dismiss the claim also because of the Tribe’s sovereign 

immunity. 2 Promissory estoppel is where one party makes a promise and a second 

party acts in reasonable and detrimental reliance on that promise. In that instance, 

a court would normally be able to enforce the promise that was relied on regardless 

of whether it was expressly stated in a contract. That’s exactly what happened in 

this matter. Tohono O’odham made representations that there would be no additional casinos in the Phoenix area and the State and other tribes and voters relied 

on the Tribe’s representations in deciding to give up rights to additional casinos and 

gaming machines, approve Proposition 202, and sign the compacts approved by the 

voters. And, because Tohono O’odham’s false promises preceded execution of its compact with the State of Arizona, the conduct fell outside of IGRA’s waiver of sovereign immunity. Neither IGRA nor any other law concerning governmental conduct 

would necessarily anticipate fraudulent conduct by responsibly governments, tribal 

or otherwise. Tohono O’odham has exploited that fundamental assumption and 

18 

shielded itself from judicial review of its conduct by refusing to waive sovereign immunity. 

Tohono O’odham argues that it is unreasonable to expect it to waive its sovereign 

immunity for what its Chairman referred to as frivolous claims. The court only 

found that it could not reach the claims because of sovereign immunity, not that 

they were without merit. Indeed, the court suggested otherwise when it stated that 

evidence appeared to support the claims against Tohono O’odham, notwithstanding 

its immunity from unconsented suit. To the contrary, it is precisely because those 

claims would expose the wrongful conduct that Tohono O’odham must use sovereign 

immunity as a shield. And, while it is common for tribes to grant limited waivers 

of sovereign immunity, particularly for commercial reasons such as casinos, it is 

hard to imagine waivers that would have expressly envisioned duplicitous conduct 

grounded in fraud as part of a gaming compact; perhaps the State will require such 

waivers of all Arizona Indian Tribes in the 2027 compacts in order to safeguard 

against future conduct of this sort by Tohono O’odham. In the end, waiving sovereign immunity is a political decision, and one that we respect. However, it is disingenuous for Tohono O’odham to refuse to waive its sovereign immunity in court 

in order to prevent resolution of certain claims and then argue that Congress should 

not resolve these same claims because they are being addressed in litigation. 

S. 2670 comes at a critical time for tribal sovereignty and Indian gaming. In May, 

the Supreme Court issued its opinion in Michigan v. Bay Mills, 134 S.Ct. 2024 

(2014). The Court, in a 5 to 4 decision, ruled that the Bay Mills Tribe could assert 

tribal sovereign immunity and avoid claims filed by the State of Michigan that 

sought to close what it claimed was an illegal off-reservation in Vanderbilt, Michigan. The Court stated at five different points in its opinion that Congress and not 

courts are the proper venue to resolve issues where sovereign immunity has frustrated efforts to bring justice to parties that cannot maintain suit against tribes. 

Perhaps most disturbingly, Justice Scalia, who voted in favor of several Supreme 

Court decisions which cemented the doctrine of tribal sovereign immunity, explicitly 

stated in his dissenting opinion in Bay Mills that those votes in support of sovereign 

immunity were wrong and that he ‘‘would overrule’’ tribal sovereign immunity. Although Bay Mills was certainly a limited victory for Indian Country, it also put a 

spotlight on the fragile state of tribal sovereign immunity and the fact that the Supreme Court is one vote from limiting its application or eliminating it altogether. 

Bay Mills illustrates that off-reservation projects such as those proposed by the Bay 

Mills Indian Community and Tohono O’odham manipulated the process for obtaining federal approval of tribal gaming projects and have used sovereign immunity as 

a shield to protect fraudulent activity. From this perspective, S. 2670 is good policy 

for Indian Country because it will address a narrow set of facts that exploit sovereign immunity and will establish that conniving plots such as that pursued by 

Tohono O’odham will not be sanctioned. 

There remain certain issues that are pending in litigation, but those issues are 

not related to the claims of fraud, misrepresentation and promissory estoppel. S. 

2670 is intended to not impact any pending court case, but rather to address the 

issues that the court has determined that it is unable to resolve. More, the Department has also indicated that it cannot resolve the claims of fraud, misrepresentation 

and promissory estoppel, and that it cannot resolve this matter because Congress, 

through the 1986 law, mandates them to take the Phoenix area land into trust for 

Tohono O’odham. Thus, Congress is the only entity capable of resolving this issue 

and addresses issues that courts are unable to review. 

For all these reasons, I respectfully ask that you pass this bill. 

19 

SUPPLEMENTAL TESTIMONY


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The CHAIRMAN. Thank you, Governor. 

Mayor Weiers? And I would ask, try to keep it to give minutes, 

because Senator McCain has another meeting to get to, and I want 

to get to him for questions. 

STATEMENT OF HON. JERRY WEIERS, MAYOR, CITY OF 

GLENDALE, ARIZONA 

Mr. WEIERS. I will do the best I can, sir, thank you very much. 

Good afternoon, Chairman Tester, Vice Chairman Barrasso and 

members of the Committee. My name is Jerry Weiers, and I am the 

mayor of Glendale, a city of 232,000, and the 72nd largest city in 

the Country. Before becoming mayor, I served eight years in the 

Arizona legislature. 


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I am here today to discuss my personal views on a casino proposed to be built in my city. I am required to state that my views 

today do not represent the majority of the body of the council. My 

views are not the official position of the council. 

Like Senator McCain, I supported Arizona Proposition 202, the 

2002 ballot initiative, which gave tribes the exclusive right to conduct gaming. One key aspect of that campaign was the clear promise repeatedly made to voters by tribes and State officials that 

there would be no additional casinos in the Phoenix metro area. 

When Governor Hall concluded compact negotiations in 2002 with 

the 17 tribes, he publicly announced that under the compact, that 

there would be ‘‘no additional casinos in the metropolitan Phoenix 

area.’’ 

Now, here is a voter pamphlet from the 2002 initiative campaign 

that was widely distributed by the 17 tribes. The pamphlet told 

voters that under the compact, ‘‘there will be no facilities in Phoenix.’’ If you look at page 6, which I have highlighted here, major 

funding for this pamphlet was provided by the Tohono O’odham 

Nation, who I will respectfully refer to as the TO. 

Understandably, the public was blindsided when Tohono 

O’odham announced in January of 2009 it was going to open a Las 

Vegas style casino on the 54 acre parcel within our city. At that 

time I was serving in the Arizona legislature, and I met with 

Tohono O’odham Chairman Norris, and I expressed my grave concerns about gambling within our city. The council immediately 

passed a resolution opposing the casino, because it would harm our 

residents and their way of life. 

Recently the city council voted four to three to repeal the 2009 

resolution opposing that casino. This was done only after the Interior Department had already decided to create a casino reservation 

on that parcel. We had no real choice; we could continue to fight 

and hope for action from this body or give up. It is frustrating to 

be a city of our size and have no voice on gambling pushed by a 

tribal government that is more than 100 miles away. The public 

has no right to object to gambling because of the narrow exception 

in the 1988 Indian Gaming Regulatory Act that Tohono O’odham 

is using that gives the Interior absolutely no authority to stop gambling, even if it knows adverse impacts to nearby neighborhoods, 

churches and the public school across the street. 

Since the Interior has no authority to stop gambling, it has no 

reason to ask the public for comments or investigate adverse impacts. This is a polar opposite to the two-part exception in IGRA, 

which is typically used for off-reservation casinos. It requires that 

the Interior prepare for an environmental impact statement and investigate in great detail adverse impacts that a casino may cause. 

What is more, for gambling to be allowed, the Secretary must determine on the record that the casino ‘‘would not be detrimental to 

the surrounding community.’’ And most importantly, the State’s 

governor has the legal right to veto any casino project, regardless 

of the Secretary’s decision. 

But in our case, the public has no say. The State legislature has 

no say. Our governor has no say, and the Interior has no authority 

to stop it. For us, this means that the largest tribal casino in the 

history of the State may operate on a 54-acre island in the middle 

29 

of the Phoenix metro area without anyone investigating and addressing the adverse environmental and social impacts it will 

cause, and without any Federal, State or local official deciding that 

it can safely operate in the public’s interest. 

What is more, my city may not be the last. Our sister cities realize that unless Congress acts, they may be next. Under the 1986 

Gila Bend Act, Tohono O’odham claims that it can create a new 

reservation on land on more than 6,000 acres. It also claimed the 

right to operate a total of four new casinos in the Phoenix metro 

area. If Congress does not act, the entire Phoenix metropolitan 

area must be prepared for more off-reservation casinos. 

That is why many mayors and city council members have signed 

a letter asking that Congress enact the Keep the Promise Act. As 

a former State legislator, I know that if gambling happens in Glendale, there will be a strong effort in the State legislature to authorize non-Indian gaming in all of Arizona. And that will have a devastating effect on all the tribes. 

I urge this Committee to move the Keep the Promise Act. The 

bill is about preserving the promises made to tribes by tribes to 

voters, protecting Phoenix metro cities from having unwanted gambling within their borders. Thank you, Chairman Tester. I will be 

happy to answer any questions. 

[The prepared statement of Mayor Weiers follows:] 

PREPARED STATEMENT OF HON. JERRY WEIERS, MAYOR, CITY OF GLENDALE, ARIZONA

Good afternoon Chairman Tester, Vice Chairman Barrasso and members of the 

Committee. My name is Jerry Weiers. I am the Mayor of Glendale, a city of 232,000 

and the 72nd largest city in the country. Before becoming Mayor, I served eight 

years in the Arizona Legislature. 

I am here today to discuss my personal views on a controversial tribal casino proposed for my City. As Mayor, I am required to state that my views today do not 

represent the majority of the body of the Council and my views are not the official 

position of the Council. 

Like Senator McCain, I supported Arizona Proposition 202, the 2002 ballot initiative which gave tribes the exclusive right to conduct gaming. One key aspect of the 

initiative campaign was the clear promise, repeatedly made to voters by Tribes and 

State officials, that there would be ‘‘no additional casinos in the Phoenix-metro 

area.’’ 

When Arizona Governor Hull concluded compact negotiations with the 17 Tribes, 

she publicly announced that under the compact, there would be—and I quote—’’no 

additional casinos in the Phoenix metropolitan area.’’ 

[HOLD UP pamphlet] Here is a voter pamphlet from the 2002 initiative campaign 

that was widely distributed by the 17 Tribes. The pamphlet told voters that under 

the compact—and I quote—’’there will be no additional facilities in Phoenix.’’ Page 

6 of the pamphlet says that major funding for it was provided by the Tohono 

O’odham Nation, who I will respectfully refer to as TO. 

Understandably, the public was blindsided when TO announced in January 2009 

that it was going to open a Las Vegas-style casino on a 54-acre parcel within our 

City. No one gave us any warning. No one asked for our opinion. At that time, I 

was serving in the Arizona Legislature and I met with TO Chairman Norris and 

expressed my grave concerns about gambling within our City. 

The City Council immediately passed a resolution opposing the casino because it 

would harm our residents and their way of life. During the following five years, the 

City was involved in two lawsuits to stop the casino, at enormous financial cost. 

Recently the City Council voted 4–3 to repeal our 2009 resolution opposing the 

casino. But this was done only AFTER the Interior Department had already decided 

to create a casino reservation on the parcel. We had no real choice—continue to 

fight and hope for action from this body, or give up. It is frustrating to be a city 

of our size and have no voice on gambling pushed by a tribal government more than 

a hundred miles away. 

30 

The public has no right to object to gambling because the narrow exception in the 

1988 Indian Gaming Regulatory Act that TO is using gives Interior absolutely no 

authority to stop gambling, even if it knows of adverse impacts to nearby neighborhoods, churches, and the 2,000-student public high school across the street, and 

even though Arizona Governor Jan Brewer formally objected. Since Interior has no 

authority to stop the gambling, there is no reason to ask the public for comments 

or investigate adverse impacts. 

This is polar opposite to the ‘‘two-part’’ exception in IGRA, which is typically used 

for off-reservation casinos such as this. It requires that Interior prepare an Environmental Impact Statement and investigate in great detail adverse impacts that a casino may cause. What’s more, for gambling to be allowed, the Secretary must determine on the record that the casino, and I quote, ‘‘would not be detrimental to the 

surrounding community.’’ And, most importantly, the State’s governor has the legal 

right to veto any casino project regardless of the Secretary’s decision. 

But in our case, the public has no say, the State Legislature has no say, the Governor has no say, and Interior has no authority to stop it, despite adverse impacts. 

For us, this means that the largest tribal casino in the history of the State may operate on a 54-acre island in the middle of the Phoenix-metro area without anyone 

investigating and addressing the adverse environmental and social impacts it will 

cause, and without any federal, state or local official deciding that it can safely operate in the public interest. 

What’s more my City may not be the last. Our sister cities realize that unless 

Congress acts, they may be next. Under the 1986 Gila Bend Act, TO claims it can 

create reservation land on 6,626 more acres. And, T.O. claims a right to operate a 

total of four new casinos in the Phoenix-metro area. If Congress does not act quickly, the entire Phoenix metropolitan area must be prepared for more off-reservation 

casinos. And that is why 8 Mayors and many more City Council members have 

signed a letter asking that Congress enact the Keep the Promise Act. 

As a former State legislator, I know that if gambling happens in Glendale, there 

will be a strong effort in the Arizona Legislature to authorize non-Indian gambling 

in the State. And that will have a devastating effect on all Tribes. 

I urge this Committee to move the Keep the Promise Act. The bill is about preserving the promises made by Tribes to voters and protecting Phoenix-metro cities 

from having unwanted gambling within their borders. 

Thank you. I am happy to answer any questions. 

The CHAIRMAN. Thank you, Mayor Weiers. Councilman Sherwood? 

STATEMENT OF HON. GARY SHERWOOD, COUNCILMAN, CITY 

OF GLENDALE, ARIZONA; ACCOMPANIED BY HON. SAMMY 

CHAVIRA, COUNCILMAN, CITY OF GLENDALE, ARIZONA 

Mr. SHERWOOD. Good afternoon, Chairman Tester and Members 

of the Senate Indian Affairs Committee. My name is Gary Sherwood, and I am a council member of the City of Glendale, Arizona. 

On behalf of Glendale, I am here today with my fellow council 

member and colleague Sammy Chavira. We are pleased to have 

been given the opportunity to present Glendale’s official position on 

S. 2670, the so-called Keep the Promise Act. 

Let me be absolutely clear: the City of Glendale strongly opposes 

enactment of this legislation. The city twice has adopted official 

resolutions clearly expressing its opposition. And these resolutions 

have been provided to the Committee. 

In this opposition to S. 2670 and House Bill 1410, we have joined 

our sister cities Peoria, Tolleson and Surprise, all of which have 

long opposed this legislation. It is important to understand that 

collectively, our cities represent the vast majority of the population 

of Phoenix’s West Valley. 

Our communities desperately need this economic development 

and employment opportunities which the Tohono O’odham Nation’s 

casino and resort project bring to our area. In Glendale alone, alVerDate Mar 15 2010 09:56 Feb 24, 2015 Jkt 091740 PO 00000 Frm 00034 Fmt 6633 Sfmt 6601 S:\DOCS\91740.TXT JACK
31 

most 80,000 of the nearly 90,000 workers who live in Glendale 

must leave the city for their employment. In other words, 88 percent of the wage earners who live in our community must travel 

elsewhere to work. Obviously, this job situation is a significant 

problem in our community. 

In the next 20 years, 65 percent of the growth in the Phoenix 

metropolitan area will occur in the West Valley. The existing casinos in the Phoenix area are overwhelming concentrated in the East 

Valley, and the West Valley resort will be over 20 miles away from 

the nearest of these existing casinos. There is no doubt that these 

successful facilities will continue to prosper. 

When I was first elected to the council in 2012, I knew we had 

to do our homework on a project like this. So I was stunned to 

learn that the prior Glendale administration had failed to make 

any effort to learn more about this proposed project before it 

rushed to oppose it. It was time to make decisions based on the 

facts. At the direction of my colleagues, Councilman Chavira, 

whose district actually borders the Nation’s reservation, Councilman Ian Hugh, Councilwoman Norma Alvarez and myself, city 

staff spent months carefully examining every aspect of the Nation’s 

proposed development. 

A minority of the Glendale City Council, including Mayor Weiers, 

continue to maintain their personal opposition to this project. But 

as President Reagan once said, ‘‘Facts are stubborn things.’’ The 

facts showed that we had been misled, not by the Nation but by 

the interests seeking to protect their overwhelming casino market 

share. Based on this misinformation, the city clearly rebuffed the 

Nation’s good faith effort to forge a mutually beneficial relationship. I am proud that the city of Glendale has now opened a new 

chapter with the Nation and has entered into an agreement that 

will bring thousands of jobs and millions of dollars in direct benefit 

to the city. 

Today, the city of Glendale and the Tohono O’odham Nation are 

bound by ties of friendship. I recently had the honor of participating in a historic groundbreaking ceremony with Chairman Norris, a member of the Nation’s legislative council, local and business 

leaders and hundreds of supporters. Construction of the project is 

now underway. This facility will be located next to our vibrant 

sports and entertainment district, an area that is represented by 

Council Member Chavira. We have talked to many business leaders 

in this area, including leaders of two professional sports teams and 

major hospitality developments, and they all support this West Valley project. 

I am sorry to report to the Committee that despite these benefits 

and the unequivocal views of Glendale residents who in poll after 

poll express overwhelming support for this West Valley resort, East 

Valley casino interests are again trying to interfere. Over the last 

several days, these casino interests have been using paid signature 

gatherers to mislead Glendale residents into signing a petition that 

challenges the city’s agreement with the Nation. As has been widely reported to the press, these paid signature gatherers have been 

caught on tape lying to Glendale voters, suggesting that the petition is in favor of the West Valley resort. Thankfully, even Mayor 

32 

Weiers has acknowledged that this dishonest publicity stunt will 

not in any way affect the city’s agreement. 

I share the sentiments of a long-time Glendale business owner, 

who told me that this bill is more properly titled Keeping the Profits Act of 2014. For all these reasons, the city respectfully urges 

that the Federal Government should not interfere in our efforts to 

improve the lives of our citizens. Do not destroy this valuable partnership between the Tohono O’odham Nation and our community. 

Senator McCain, you did bring up a point about what this would 

do to other Phoenix area casinos. Again, a good share of the growth 

in the Valley of the Sun is going to take place in the West Valley 

over the next 20 years. Currently there are seven casinos that are 

considered in the metro Phoenix area. Six of them are in the far 

East Valley with the one being a little over 20 miles away. So I 

really don’t think that is going to be a concern. 

Thank you for this opportunity to testify on this matter. I and 

Councilman Chavira will be pleased to answer any questions that 

you may have. 

[The prepared statement of Mr. Sherwood follows:] 

PREPARED STATEMENT OF HON. GARY SHERWOOD, COUNCILMAN, CITY OF GLENDALE, ARIZONA

Good afternoon Chairman Tester and Members of the Senate Indian Affairs Committee. My name is Gary Sherwood, and I am a member of the City Council for the 

City of Glendale, Arizona. On behalf of the City of Glendale I am here today with 

my fellow City Councilmember and colleague Sammy Chavira. We are pleased to 

present the City of Glendale’s official position on S. 2670, the companion bill to H.R. 

1410. Let me be clear: despite what you have heard from our mayor, the City twice 

has adopted resolutions which unequivocally state our opposition to H.R. 1410, and 

now S. 2670. 

This dangerous and wrongheaded legislation would prevent the City of Glendale 

from benefitting from the economic development and desperately needed employment opportunities which already have begun to be generated by the Tohono 

O’odham Nation’s planned development for its West Valley reservation. Make no 

mistake, enactment of S. 2670 will have a unmistakably negative impact on the people of the West Valley, people who were disproportionally hit by the economic downturn that began with the home mortgage crisis in the late 2000s. For this reason, 

Glendale joins the other major municipal governments of the West Valley—the cities 

of Peoria, Tolleson and Surprise—in opposition to this legislation. Together, our cities make up the overwhelming majority of the population of the area west of Phoenix known as the ‘‘West Valley’’. 

To put our views in perspective, I want to share with you that the West Valley’s 

ability to provide employment opportunities to our own people lags badly behind the 

need. At a recent WESTMARC economic development forum it was noted that the 

West Valley is home to 39 percent of the region’s population (and our population 

is still growing)—but that only 24 percent of the jobs in our region are located West 

Valley. A recent studyfinds that ‘‘51 percent of people who live in the region—Surprise, Peoria, Glendale and other cities—work outside of it. . . . Of the total, only 

about 35,000 of the 109,000 people surveyed both live and work in the Northwest 

Valley.’’ West Valley jobs lag population growth, Arizona Republic (April 23, 2014). 

This dynamic is particularly severe in Glendale. We can see from recent census reports that of the 88,699 workers living in Glendale, 78,122 travel outside Glendale 

for their employment. ‘‘On the Map,’’ 2011 Census. These numbers are staggering, 

and underscore the West Valley’s desperate need for additional economic development opportunities. 

The City of Glendale is the proud home of the Arizona Cardinals football franchise, the Phoenix Coyotes hockey team, and the spring training facilities for the 

Los Angeles Dodgers and Chicago White Sox. The Tohono O’odham Nation’s project 

is located near this area, and in our view will directly compliment the commercial 

development that will surround it. When the Nation announced its plans for the 

West Valley Resort in 2009, it immediately reached out to the City, even though 

its land was outside Glendale’s city limits. The Nation also early reached out to 

33 

other West Valley municipalities, and began a dialogue aimed at forging mutually 

beneficial working relationships with all of us in the local community. 

Our partnerships with the Tohono O’odham Nation are a shining example of what 

is possible when an Indian tribe and local communities work together, hand in 

hand, to bring positive economic development to fruition. The last thing our communities need is federal legislation which would intrude on our local decisionmaking, 

throw our citizens out of work, and deprive our economies of hundreds of millions 

of dollars in economic impacts. The specter of such legislation is all the more disheartening to Glendale and our counterparts in other West Valley cities because it 

is so clear that its main purpose is to legislate a monopoly for two other tribes who 

operate gaming facilities in the East Valley way over on the other side of Phoenix. 

As I have heard Peoria Mayor Barrett say over and over again, we are tired of seeing the buses that come every day to the West Valley to pick up gaming patrons 

and take them back over to the other side of the Valley to spend their entertainment dollars outside of their own local community. In the next twenty years, 65 percent of the growth in the Phoenix metropolitan area will occur in the West Valley. 

For these reasons, like the City of Glendale, the West Valley cities of Peoria, Surprise, and Tolleson, each have taken formal action to oppose H.R. 1410/S. 2670, and 

have expressed that opposition in writing to the Congress. See, Testimony of Hon. 

Robert Barrett on Behalf of the City of Peoria, Arizona, Before the Subcommittee on 

Indian and Alaska Native Affairs, Committee on Natural Resources, U.S. House of 

Representatives (May 16, 2013); Letter of Bob Barrett, Mayor, on Behalf of the City 

of Peoria, Arizona, to the Senate Committee on Indian Affairs; July 21, 2014 Letter 

of Sharon Wolcott, Mayor, on Behalf of the City of Surprise, Arizona to the Senate 

Committee on Indian Affairs; July 17, 2014 Letter of Adolfo Gamez, Mayor, on Behalf of the City of Tolleson, Arizona, to the Senate Committee on Indian Affairs. 

Because the City of Glendale has taken longer than most of its sister cities to recognize the tremendous value of the West Valley Resort, it is important to provide 

a bit of background on how we got here. I was elected to the Glendale City Council 

in late 2012. At the time I must admit I was skeptical about the Tohono O’odham 

Nation’s West Valley Resort and Casino proposal. The City had previously entered 

into several hundred-million-dollar development deals that resulted in the City paying substantial subsidies to private interests. As a direct consequence, Glendale was 

facing a huge budget crisis, and it seemed as if this project might be a drain on 

the City’s already scarce resources. 

Given this history, and my experience serving for decades on numerous boards, 

commissions, and task forces in my community prior to my election to the City 

Council, I knew we had to do our homework when considering massive economic development projects like this one. So when I received my first briefings on this 

project as a member of the City Council, I was stunned to learn that the prior Glendale administration, which opposed the West Valley Resort, had engaged in no factfinding on the project and had refused to engage in any dialogue with the Nation 

at all. This despite the fact that the Nation had made significant attempts to meet 

City officials and despite the fact that over a dozen administrative and court decisions had confirmed the Nation’s right to acquire the West Valley Resort land in 

trust under its land claim settlement act and conduct gaming on the site. 

Meanwhile, the other major cities in the West Valley had long ago accepted the 

Nation’s invitation for dialogue, and as noted above these cities have since expressed formal support for the project. So in 2013, the City opened a formal dialogue 

with the Nation on this project, and engaged on a nearly-six-month fact finding mission to carefully explore the pros and cons of this development. After receiving regular, detailed updates from staff over several months, the City Council formally 

voted in March 2014 to begin formal negotiations with the Tohono O’odham Nation 

in order to see whether we could reach agreement on the project. At that time, we 

also formally voted as a Council to oppose H.R. 1410, a position that a majority of 

our councilmembers already had expressed individually on numerous occasions. 

While a few individual members of the Glendale City council, including Mayor 

Weiers, have continued their misguided opposition to this project, they are in the 

distinct minority, both in terms of the City Council and the West Valley. They remain out of step with the more than two-thirds of Glendale residents who have consistently supported this project for the last five years. To put it simply, they are 

entitled to their views, but these views are their own personal views, and do not 

represent the official position of the City of Glendale. I fear that these individuals 

have turned a deaf ear to the facts and instead have fallen prey to the misinformation being peddled by East Valley casino interests seeking to protect their market 

share. This misinformation was on display this past July, when Mayor Weiers testified before this Committee in an oversight hearing on Indian gaming. Unfortunately, Mayor Weiers used the opportunity to vigorously present his personal views, 

34 

which were in direct opposition to the actual and official position of the City of Glendale. 

But as former President Ronald Reagan once said, ‘‘facts are stubborn things.’’ 

When the majority of my colleagues on Council and I were presented with the facts 

about the West Valley resort and casino it became clear that this project was right 

for our community. Through this process, we learned a great deal, not only about 

jobs and positive economic impact, but also about the history of the Nation’s plans 

and gaming in Arizona. We examined, with open minds, the claims made by the Nation’s opponents—claims that the Nation had hid its intentions from other tribes or 

that the tribes had promised that there would be ‘‘no new casinos in Phoenix.’’ 

When we looked at the facts, presented in administrative and court proceedings, we 

found these claims totally lacking. Evidence presented in federal court showed that 

East Valley casino interests and State legislators knew about the Nation’s rights 

under its settlement act and in fact sought prohibitions on gaming similar to H.R. 

1410/S. 2670 during negotiations over the gaming compacts. However, these market 

protection prohibitions were rejected and were never incorporated into the compact 

that the State of Arizona and all the tribes (including the East Valley tribes) signed. 

In other words, East Valley interests are now seeking to obtain from Congress 

through H.R. 1410/S. 2670 the prohibitions that they were unsuccessful in negotiating back in 2002—at the expense of my community in the West Valley and in violation of the promises made to the Tohono O’odham Nation. These opponents have 

spent lots of money and thrown every conceivable form of mud against the wall, but 

none of it has stuck. H.R. 1410/S. 2670 is just the latest attempt to protect East 

Valley casino market share. As a longtime Glendale business owner recently said 

to me, this legislation is more properly titled the ‘‘Keeping the Profits Act of 2014.’’ 

After careful examination of these facts, the City formally voted in July and August to support the use of the Nation’s West Valley Resort property for gaming and 

to enter into a formal agreement that provides significant mutual benefits to the 

City for years to come. Under the uniform Arizona tribal-state gaming compacts, Indian tribes are required to share a portion of their gaming revenues with the State 

of Arizona. However, unlike some gaming compacts in other states, there is no requirement that this revenue go to particular communities. Instead, in Arizona, 

while tribes must devote a portion of this revenue sharing to local communities, it 

is up to each to tribe to determine which communities receive these grants. To my 

knowledge, the agreement that the City has struck with the Tohono O’odham Nation goes well beyond any other tribal gaming revenue grant or casino impact agreement in Arizona in terms of direct benefits to a municipality. Under the agreement: 

• The City will receive funding in excess of $26 million during the 20-year term 

of the agreement; 

• The City has already received an initial good faith payment of $500,000; 

• Unlike development deals that the City has entered into in prior decades, the 

City will not pay one dime to the Nation for construction costs, infrastructure 

costs in and around the site, and municipal services such as water and wastewater. Instead, the Nation will pay for all of these costs; 

• The Nation will pay Glendale’s monthly standard fees and service charge rates 

for commercial customers on the site. 

More important to the City than these specified benefits, however, are the jobs, 

economic impacts, and revenue sharing that the project is beginning to generate for 

the West Valley and the State of Arizona. 

I am sorry to report that despite these benefits and the views of Glendale residents (who in poll after poll express overwhelming support for the West Valley Resort), East Valley casino interests are now paying signature gatherers to mislead 

Glendale residents into signing a petition to challenge the City’s agreement with the 

Nation. As has been widely reported in the press, these paid signature gatherers 

have been caught on tape lying to Glendale voters, suggesting that the petition is 

in favor of the West Valley Resort. Thankfully, even Mayor Weiers has acknowledged that this dishonest publicity stunt will not in any way affect the City’s agreement. 

I recently had the honor of participating in an historic groundbreaking ceremony 

on the project site with Tohono O’odham Nation Chairman Ned Norris, construction 

and building development representatives, and more than 200 other tribal and municipal leaders. I have not seen such a demonstration of regional cooperation since 

we collaborated on building the Arizona Cardinals Stadium in Glendale more than 

a decade ago. Construction on the West Valley Resort site is now underway. 

I have met personally with representatives of the other major sports, entertainment and retail industries in Glendale, including the Phoenix Coyotes, Arizona CarVerDate Mar 15 2010 09:56 Feb 24, 2015 Jkt 091740 PO 00000 Frm 00038 Fmt 6633 Sfmt 6621 S:\DOCS\91740.TXT JACK
35 

dinals, Tanger Outlet Mall, the Renaissance Hotel, and many other restaurants and 

businesses, all of whom have expressed support for the Nation’s project and the secondary benefits that it will bring to their franchises. We also have heard from other 

developers who are excited about the West Valley Resort and who are now interested in investing in our community. In short, this project is already beginning to 

pay dividends. 

For all these reasons I respectfully urge Congress not to reach back from Washington, D.C. to interfere in our efforts to improve the lives of our citizens. Do not 

crush the dreams of my constituents and those of my sister cities, who have waited 

patiently for the jobs, investment in our community, and economic development 

which this project already has begun to bring to the West Valley. We urge the Senate Indian Affairs Committee to see past the misinformation campaign waged by 

East Valley casino interests which are pushing a false narrative in order to change 

federal law and break a promise made by President Reagan and the U.S. Congress 

to the Tohono O’odham Nation more than twenty-five years ago. Congress should 

be doing everything it can to foster economic development and positive working relationships between tribal and local governments, not moving forward special interest, 

market-protection legislation. The City of Glendale is asking you not to destroy this 

valuable partnership between the Tohono O’odham Nation and my community. We 

are emphatically urging this Committee to prevent H.R. 1410/S. 2670 from moving 

forward out of this Committee, and urging the Committee to do everything in its 

power to ensure that it does not become law. 

On behalf of the City of Glendale, I want to thank you for this opportunity to testify on this matter, which is of such great importance to the City of Glendale. I and 

Councilman Chavira would be pleased to answer any questions that the Committee 

may have. 

The CHAIRMAN. Thank you, Councilman Sherwood. Chairman 

Norris? 

STATEMENT OF HON. NED NORRIS, JR., CHAIRMAN, TOHONO 

O’ODHAM NATION OF ARIZONA 

Mr. NORRIS. Chairman Tester, Senator McCain and honorable 

members of the Committee, good afternoon. 

This is now the fourth time that I have come before Congress to 

testify about this legislation. If enacted, it would commit a profound injustice against the Tohono O’odham Nation and set a terrible precedent for Indian Country. Although I do very much appreciate the opportunity to provide our views on this bill, the Nation 

is profoundly disappointed that Congress continues to entertain the 

cynically-named Keep the Promise Act. 

This legislation shows no respect for the clear terms of the 1986 

settlement agreement between the Nation and the United States, 

no respect for the contractual agreement between the Nation and 

the State of Arizona in our 2003 gaming compact, no respect for 

the Federal courts and administrative agencies which, in 16 decisions, have reviewed the settlement, the compact, the law and 

found in favor of the Nation, and no respect for the United States’ 

trust responsibility to the Tohono O’odham Nation. 

At the heart of this matter, as I have testified previously, is the 

fact that the Corps of Engineers destroyed nearly 10,000 acres of 

the Nation’s Gila Bend Reservation in Maricopa County. In 1986, 

Congress enacted the Gila Bend Indian Reservation Lands Replacement Act to compensate the Nation for the loss of its land and valuable water rights. An important part of this settlement is the 

right to acquire replacement land that has the same legal status 

as the destroyed land. 

Most of our reservation land is located in remote, isolated areas. 

Our population is one of the poorest in the United States, with avVerDate Mar 15 2010 09:56 Feb 24, 2015 Jkt 091740 PO 00000 Frm 00039 Fmt 6633 Sfmt 6601 S:\DOCS\91740.TXT JACK
36 

erage individual incomes just over $8,000. As Congress clearly provided in 1986, the Nation will develop its replacement reservation 

land to generate revenue for public services and employment for 

our people. 

In deciding to use our land for gaming, we relied on the plain 

language of the Gila Bend Act, which promises that we can use our 

replacement land as a Federal reservation for all purposes, the Indian Gaming Regulatory Act, which explicitly allows settlement 

lands to be used for gaming, and our tribal-State gaming compact, 

which the State and all Arizona gaming tribes negotiated and 

signed and which explicitly allows gaming on new lands consistent 

with the requirements of IGRA. 

The Nation has had it with the constant misinformation and 

rhetoric about back room deals and secret plots. These arguments 

have been litigated and rejected by the courts. Here are the facts. 

Not only is the Gila Band Act a public law that was the subject 

of extensive hearings in the 1980s, its land acquisition authority 

was explicitly preserved in the 2004 Arizona Water Settlements 

Act, by which Gila River Indian Community secured its enormously 

valuable water rights settlement. 

Further, not only does the tribal-State compact clearly allow the 

Nation to game on this settlement land in Maricopa County, it also 

explicitly prohibits outside agreements which would change the 

compact terms. 

Our sister tribes have long benefited from the advice of numerous experienced attorneys. The idea that these tribes have no understanding of the Nation’s rights under the plain language of the 

Gila Bend Act, IGRA and the tribal-State compact is, as the United 

States courts declared, ‘‘entirely unreasonable.’’ 

The Gila River Indian Community, the Salt River Indian Community and the Tohono O’odham Nation are relatives and friends. 

Our shared history is vitally important to the Nation. But these 

tribes’ continued assault on the Nation’s rights has taken a toll. We 

ask these tribes to carefully consider the damage their efforts are 

causing, both in Arizona and in Indian Country generally. 

Honorable members of the Committee, the Nation respectfully 

urges that you put an end to this misguided, cynical legislation. It 

breaks the promises made by the United States and in Indian land 

and water rights settlements. It unilaterally amends the negotiated 

terms of federally-approved tribal-State gaming compacts. Most of 

all, it is a return to a dishonorable era of Federal Indian policy and 

will leave a black mark on this Committee and this Congress’ legacy. 

Thank you. I would be pleased to answer any questions the Committee may have. 

[The prepared statement of Mr. Norris follows:] 

PREPARED STATEMENT OF HON. NED NORRIS, JR., CHAIRMAN, TOHONO O’ODHAM

NATION

My name is Ned Norris, Jr. I am the elected Chairman of the Tohono O’odham 

Nation. The Nation is a federally recognized tribe with more than 32,000 members. 

Our people have lived since time immemorial in southern and central Arizona where 

our non-contiguous reservation lands—including our West Valley Reservation in 

Maricopa County—are located. I thank Chairman Tester and the Committee for 

holding a legislative hearing on H.R. 1410/S. 2670, and for giving the Nation an opVerDate Mar 15 2010 09:56 Feb 24, 2015 Jkt 091740 PO 00000 Frm 00040 Fmt 6633 Sfmt 6621 S:\DOCS\91740.TXT JACK
37 

1See, e.g., Hrg. No. 98–46, on H.R. 4566 (June 19, 1984); H.R. 6390, Indian Country Gambling 

Regulation Act (98th Congress); H.R. 4566, Indian Gambling Control Act (98th Congress); Hrg. 

Continued 

portunity to testify about this bill. If enacted, this legislation will effect a profound 

injustice upon the Tohono O’odham Nation, one that will besmirch the United 

States’ honor and set a terrible precedent for its relationship with Indian Country. 

The Nation is deeply disappointed that Congress is even considering this legislation—a bill that shows no respect for the clear terms of agreements negotiated between sovereign governments, that would break the promises the United States has 

made to my Nation, in a land and water settlement we all agreed to, and that will 

re-open up water rights claims on the Gila River. I come before Congress, now for 

the fourth time, to highlight the many problems with this legislation. 

On July 23rd, during this Committee’s oversight hearing on Indian gaming, I submitted testimony describing the destruction of our Gila Bend Indian Reservation in 

Maricopa County, the result of perpetual flooding caused by a dam built by the 

United States Army Corps of Engineers. I also described the federal legislation enacted in 1986 to compensate the Nation for its losses and the Corps’ wrongdoing— 

the Gila Bend Indian Reservation Lands Replacement Act (Pub. L. 99–503). Because 

I would like to focus my remarks today on the far-reaching, negative precedent that 

this bill would set, I will only briefly summarize my prior testimony about the destruction and loss of property and water rights suffered by the Nation. 

Historical Context: Destruction of Thenation’s Gila Bend Reservation and 

the 1986 Gila Bend Act 

In the 1950s, the Corps of Engineers built the Painted Rock Dam to protect large 

commercial farms downstream from our Gila Bend Reservation, which at that time 

contained about 10,000 acres of prime agricultural land. The dam caused perpetual 

flooding of the reservation, destroying our homes and our farms, making the land 

unusable, and forcing the residents to move to a 40-acre parcel known as San Lucy 

Village. Our tribal members continue to live there today, well below the poverty 

line, with multiple families crowded into small substandard housing. The Corps had 

no Congressional authorization or tribal consent to flood our land, and the resulting 

destruction constituted a taking of our property rights as well as a significant 

breach of trust by our federal trustee. 

In an effort to avoid litigation, Congress instructed the Department of the Interior 

to search for agricultural replacement lands within a 100-mile radius of our flooded 

reservation, but none could be found. As a result, in 1986 Congress enacted legislation that would instead compensate the Nation by providing the Nation the right 

to locate and acquire replacement lands in Maricopa, Pima or Pinal Counties (where 

our various reservation areas are located). In exchange the Nation was required to 

relinquish its title to nearly all of the Gila Bend reservation lands and the water 

rights appurtenant to it, and its legal claims against the United States. That settlement statute, the Gila Bend Indian Reservation Lands Replacement Act (Pub. L. 

99–503) (Gila Bend Act), provided that the Nation’s replacement lands were to have 

the same status as the lands that we lost, i.e., the replacement lands are to be treated as a ‘‘Federal Indian Reservation for all purposes.’’ Id., § 6(d) (emphasis added). 

The Gila Bend Act also made clear that Congress’ intention was to ‘‘facilitate replacement of reservation lands with lands suitable for sustained economic use which 

is not principally farming.’’ Id. § 2(4) (emphasis added). In addition, the United 

States would pay the Nation $30 million, which was only a small fraction of the 

value of our lost land and water rights. 

As Senator DeConcini (one of the sponsors of the Gila Bend Act) noted on the 

pending bill, ‘‘Over 3 years of work have gone into this settlement.[P]rofessional 

staff of the House Interior Committee, as well as other staffs, have spent a great 

deal of time on trying to develop a fair and reasonable settlement.’’ 132 Cong. Rec. 

S14457–01 (October 1, 1986). Relying on the United States’ promises in this settlement legislation, (which Act the Department of the Interior has described as ‘‘akin 

to a treaty,’’ Tohono O’odham Nation v. Acting Phoenix Area Director, Bureau of Indian Affairs, 22 IBIA 220, 233 (1992)) the Nation executed a settlement agreement 

in 1987, giving up our right to sue the United States and relinquishing our land 

and water rights claims. 

The Gila Bend Act Makes Clear That Our Land is a ‘‘Federal Indian 

Reservation for All Purposes’’—Including Gaming 

At the same time Congress was considering the Gila Bend Act, it also was holding 

extensive hearings on predecessor Indian gaming legislation that ultimately would 

become the Indian Gaming Regulatory Act, Pub. L. 100–497 (IGRA). 1 Two years 

38 

No. 99–55 Part I, on H.R. 1920 & H.R. 2404 (June 25, 1985); Hrg. No. 99–207, on S. 902 (June 

26, 1985); Hrg. No. 99–55 Part II, on H.R. 1920 & H.R. 2404 (Nov. 14, 1985); H. Rep. No. 99– 

488, to accompany H.R. 1920 (Mar. 10, 1986); Hrg. No. 99–887, on S. 902 (June 17, 1986); S. 

Rep. No. 99–493, To Accompany H.R. 1920 (Sept. 24, 1986); H.R. 3130, An Act to Prohibit 

Granting of Trust Status to Indian Lands to be used for the Conduct of Gaming Activities (99th 

Congress); S. 2557, Indian Gaming and Authorization Act of 1986 (99th Congress); Amendment 

No. 3226, to H.R. 1920, 134 Cong. Rec. S15390 (Oct. 6, 1986); H.R. 1920, Indian Gambling Control Act—(99th Congress); S. 902, Indian Gambling Control Act (99th Congress); see also, Franklin Ducheneaux, The Indian Gaming Regulatory Act: Background and Legislative History, Arizona State Law Journal, Volume 42, Number 1, Spring 2010, 99. 2 In contrast, prior to IGRA’s enactment, if Congress wanted to restrict or ban gaming on new 

trust land, Congress explicitly included language to that effect. See, e.g., the Florida Indian 

Land Claims Act of 1982, Pub. L. 97–399 (Dec. 31, 1982), the Ysleta del Sur Pueblo Restoration 

Act, Pub. L. 100–89, Tit. I (Aug. 18, 1987) and the Alabama and Coushatta Indian Tribes of 

Texas Restoration Act, Pub. L. 100–89 Tit. II (Aug. 18, 1987). If Congress had intended to impose a similar restriction on the Nation, it would have done so explicitly in the 1986 Gila Bend 

Act—but it did not. Just as important, the Nation absolutely never agreed to such a condition, 

and no such condition exists in the 1987 settlement agreement signed by the Nation and the 

United States. 3The Nation’s gaming establishment was discussed again in IGRA predecessor legislation 

hearings before the same Committee in 1985. Hrg. No. 99–55 Part I, on H.R. 1920 & H.R. 2404 

at 29. 

prior to passage of the 1986 Gila Bend Act, the Department of the Interior testified 

before the House Interior and Insular Affairs Committee that 80 Indian tribes were 

engaged in some form of gaming on their reservations. H. Hrg. No. 98–46, at 62 

(June 19, 1984). 2 The Nation (then known as the Papago Tribe) was one of these 

tribes, having operated Papago Bingo on one of its reservations outside Tucson since 

1984. Id., at 117. 3

Given this history, and given the fact that the Gila Bend Act itself requires that 

the settlement land acquired under the Gila Bend Act ‘‘shall be deemed to be a Federal Indian Reservation for all purposes,’’ there can be no serious argument that 

Congress could not have foreseen that this land would be used for gaming. To the 

contrary, Congress ensured that the replacement lands would have the same legal 

status as the Nation’s destroyed Gila Bend reservation. In IGRA, Congress similarly 

sought to ensure that lands acquired in trust after IGRA’s 1988 enactment date as 

part of the settlement of a land claim would be treated equally to the pre-IGRA 

claim lands they were intended to replace (i.e., the new lands would be gaming-eligible just as were the claim lands that were lost). As explained by former Interior 

Secretary Salazar: 

Certain lands that are acquired after IGRA’s passage in 1988 are treated under 

the statute as though they were part of pre-IGRA reservation lands, and, therefore, are eligible for gaming purposes. . .Lands that are taken into trust for settlement of a land claim, as part of an initial reservation, or as restoration of 

lands for a tribe that is restored to federal recognition are also excepted from 

the IGRA prohibition in order to place certain tribes on equal footing. 

See Memorandum from the Secretary to the Assistant Secretary for Indian Affairs, ‘‘Decisions on Gaming Applications’’ (June 18, 2010) at 2 (emphasis added), 

available at http://www.bia.gov/cs/groups/public/documents/text/idc009878.pdf. 

Indeed, lands acquired pursuant to the 1986 Gila Bend Act are the quintessential 

type of lands that IGRA intended to protect through the equal footing exceptions. 

Under the Act, the Nation may acquire land to replace the acreage destroyed by the 

Painted Rock Dam see Pub. L. 99–503 at Section 6(c) so that the replacement land 

will have the same gaming eligibility status as the land it replaces. 

The Nation’s West Valley Reservation 

In keeping with the requirements of the Gila Bend Act, which limit the location 

and the amount of replacement land the Nation may acquire, the Nation purchased 

unincorporated land in Maricopa County located in the ‘‘West Valley’’ (an area west 

of the City of Phoenix). The land is about 49 miles from the Gila Bend Reservation, 

between the cities of Glendale and Peoria. Both the federal courts and the Department of the Interior have determined that our West Valley land meets the strict 

statutory requirements in the Gila Bend Act. In July the Department of the Interior 

complied with its congressionally-imposed duty to acquire the land in trust, and it 

is now a part of the Tohono O’odham Reservation. Letter of Kevin Washburn, Assistant Secretary—Indian Affairs, United States Department of the Interior, to Ned 

Norris Jr., Chairman, Tohono O’odham Nation (July 3, 2014). 

Although the Nation’s West Valley reservation is a significant distance (more than 

twenty miles) from other tribal gaming operations in the Phoenix metropolitan area, 

39 

a few tribes with Phoenix area gaming facilities vigorously urge passage of S. 2670/ 

H.R. 1410. Early on they urged that the legislation was necessary because the Nation’s actions violated the Gila Bend Act, the Nation’s tribal-state gaming compact, 

and IGRA. When the federal courts rejected their claims, these tribes started to 

shift to new arguments. Most recently, they claim that the legislation is needed to 

prevent the Nation from violating some unwritten, back-room promise, and they further argue that without the legislation, there will be no way to stop an explosion 

of new gaming in the East Valley (the area east of the City of Phoenix). In fact, 

these tribes vigorously oppose the Nation’s project because they have long enjoyed 

a monopoly in one of the biggest gaming markets in the United States, and the simple fact is that they would prefer not to share that market. Based on these market 

share concerns, they have urged the introduction and enactment of S. 2670 and its 

companion bill H.R. 1410. 

Their arguments having been rejected in every other venue, the proponents of 

H.R. 1410/S. 2670 come to Congress as a last resort to ask it to enact legislation 

that unilaterally inserts into the Nation’s tribal-state gaming compact a new restriction which was never negotiated and to which the Nation never would have 

agreed—a prohibition against developing our West Valley reservation the way we 

have every right to do under the Gila Bend Act, the Indian Gaming Regulatory Act, 

and our Secretarially-approved tribal-state gaming compact. This use of a unilateral 

amendment to eviscerate our land and water rights settlement is unprecedented— 

Congress has never in the modern era unilaterally abrogated either a settlement or 

a tribal-state gaming compact. And it should not start now. 

H.R. 1410/S. 2670 Is Dangerous Precedent 

As discussed in more detailed elsewhere, the Gila Bend Act settles the Nation’s 

claims for the unauthorized flooding of nearly 10,000 acres of its Gila Bend Reservation, providing for the purchase of replacement lands that will be treated the same 

as the Nation’s lost reservation lands. In exchange, the Nation gave up it legal 

claims against the United States, including its water rights claims, and title to its 

Gila Bend reservation lands. H.R.1410/S. 2670 would fundamentally alter these 

terms by no longer treating the Nation’s replacement land as a ‘‘federal reservation 

for all purposes’’—enactment of this legislation would mean that the replacement 

land henceforth will be treated as ‘‘a federal reservation for all purposes except Indian gaming’’. 

In testimony before the House Natural Resources Committee on S. 2670’s companion bill H.R. 1410 and its predecessor bill H.R. 2938, the Department of the Interior has twice opposed the proposed legislation in no small part because it unilaterally interferes with a federally-enacted settlement and a federally-approved tribalstate gaming compact. See Testimony of Paula Hart, Director, Office of Indian Gaming, U.S. Department of the Interior, Before the Subcommittee on Indian and Alaska 

Native Affairs, Committee on Natural Resources, U.S. House of Representatives (October 4, 2011); Testimony of Michael Black, Director, Bureau of Indian Affairs, 

United States Department of the Interior, Before the Subcommittee on Indian and 

Alaska Native Affairs, Committee on Natural Resources, U.S. House of Representatives (May 16, 2013) . The Department’s objections have remained consistent, noting 

that: 

H.R. 1410 would negatively impact the Nation’s ‘‘all purposes’’ use of selected 

lands under the Gila Bend Act by limiting the Nation’s ability to conduct Class 

II and Class III gaming on such selected lands. . .H.R. 1410 would specifically 

impact the Gila Bend Act by imposing additional restrictions beyond those 

agreed upon by the United States and the Tohono O’odham Nation 25 years ago. 

The Department cannot support legislation that specifically impacts an agreement so long after the fact. . .The effect of this legislation would be to add a 

tribespecific and area-specific limitation to the IGRA. 

Black Testimony at 2–3(emphasis added). 

The Department further underscored its concern ‘‘about establishing a precedent 

for singling out particular tribes through legislation to restrict their access to equal 

application of the law.’’ Id. We understand that the Department of the Interior will 

again testify at this hearing, and we trust it will raise the same concerns with the 

Senate Indian Affairs Committee as it did with the House Natural Resources Committee. 

In her testimony before the Committee, outgoing Salt River Indian Community 

President Diane Enos argued that H.R. 1410 would not create a dangerous precedent, and she insisted that that there are other examples of federal legislation similar to H.R. 1410. Testimony of President Diane Enos, Oversight Hearing on ‘‘Indian 

Gaming: The Next 25 Years,’’ at 4–5 (July 23, 2014). But this is untrue, and each 

40 

of her examples is demonstrably misleading. None of the legislation she identified 

involved the kind of settlement agreement reached between the United States and 

the Nation, where in return for giving up its destroyed reservation, the United 

States agreed to take land into trust for the Nation and treat it as a ‘‘Federal Indian 

Reservation for all purposes.’’ In fact, few of the statutes she cited involved any sort 

of settlement agreement at all. For example, the Colorado River Indian Reservation 

Boundary Correction Act, the Siletz and Grand Ronde Tribe acts, and the Indian 

Pueblo Cultural Center Clarification Act all involved land grants by Congress without the kind of contract and trust promises that are central to the Nation’s settlement act and agreement. See Pub. L. 10947 (Aug. 2, 2005); Pub. L. 110–78 (Aug. 

13, 2007); and Pub. L. 111–354 (Jan 4. 2011). Others, like the amendments to the 

Rhode Island Indian Claims Settlement Act, concerned the ability of the State of 

Rhode Island to prohibit gaming by multiple tribes when those tribes had agreed 

to state jurisdiction as part of the original settlement. See Pub. L. 104–208; Narragansett Indian Tribe v. Nat’l Indian Gaming Comm., 158 F.3d 1335 (D.C. Cir. 

1998)). In contrast, H.R. 1410 would have Congress unilaterally amend an agreement with a single Indian tribe that would eliminate legal rights that this tribe possesses. Finally, the amendments to the Mashantucket Pequot Settlement Act provided for additional benefits to the tribe (in the form of lease extensions) at that 

Tribe’s request. See Pub. L. 110–228. 

In short, amending settlement legislation over the express objection of the Department of the Interior (which now holds title to the land) and the Nation (for whose 

beneficial interest the land is held in trust) cannot even remotely be analogized to 

‘‘routine restrictions’’ on ‘‘legislation involving Indian land’’ or ‘‘revisit[ing] existing 

statutes to clarify the party’s intent’’ as former President Enos urged. None of the 

examples cited by the tribal proponents of H.R. 1410/S. 2670 are similar or even 

relevant to the statutory provisions in S. 2670, which would fundamentally change 

the terms of an existing land and water rights settlement reached by the Nation 

and the United States some 25 years ago over the objections of both of the parties 

to that settlement. H.R. 1410/S. 2670 thus serves as a powerful disincentive to 

tribes that are considering whether or not to enter into settlement agreements. 

Think of it this way. If H.R. 1410/S. 2670 is deemed acceptable for enactment, 

then there also is no reason why Congress should not, at the behest of competing 

water users, ‘‘impose additional restrictions beyond those agreed upon by the United 

States and the [Community]’’ on the Gila River Indian Community pursuant to the 

Arizona Water Settlements Act, Pub. L. 108–451, and no reason why Congress 

should not pass legislation that ‘‘specifically impacts’’ the Salt River Pima- Maricopa 

Indian Community Water Rights Settlement Act, Pub. L. 100–512. Such legislation 

might, for example, impose additional unilateral restrictions on the manner of each 

Tribe’s use of the water rights allocated under their respective settlement agreements. The Nation has no doubt that if Congress were trying to unilaterally amend 

either of these tribes’ settlements, these tribes would object as strenuously as the 

Nation does to H.R. 1410/S. 2670. 

Given the United States’ long, ugly history of unilaterally breaking its treaties 

with tribal nations, this Congress should think long and hard about reviving that 

dishonorable legacy with this legislation. 

If Enacted, S. 2670 Will Create New Liabilities for the United States and 

Destabilize Ongoing Water Rights Litigation 

Because S. 2670 would deny the benefits that the United States promised to the 

Nation in return for the Nation waiving its land and water rights claims (by preventing the Nation from using its West Valley Reservation for economic development and as a reservation for all purposes), it would effectively unravel the settlement agreement embodied in the Gila Bend Act, giving rise to new takings and 

breach of contract claims against the United States and upsetting active water 

rights litigation. 

Fifth Amendment Takings Claim 

The U.S. Constitution provides that private property may not be ‘‘taken for public 

use, without just compensation.’’ See U.S. Const., amend. V; Penn Central Transp. 

Co. v. City of New York, 438 U.S. 104, 124 (1978). S. 2670 would take away the 

Nation’s right, as confirmed by the court in the litigation brought by the Nation’s 

opponents, to use its West Valley Reservation for gaming-related economic development. See Forest County Potawatomi Cmty. of Wis. v. Doyle, 828 F. Supp. 1401, 1408 

(W.D. Wis. 1993) (Indian tribe had a property interest in the right to game under 

its Tribal-State compact). By interfering with the Nation’s investment-backed expectations that it can conduct gaming on its West Valley reservation under its tribalstate compact and thereby causing substantial economic harm to the Nation, S. 

41 

4The United States later determined that the 32,000 acre foot figure cited in the Gila Bend 

Act’s legislative history was in fact too low, and filed a claim for 35,965 acre feet of water in 

the Gila River Adjudication. See, Statement of Claimant, United States ex rel. Gila Bend Indian 

Reservation Tohono O’odham Nation, No. 39–35090 (Ariz. Super. Ct. Maricopa County Mar. 25, 

1987). 

2670 would effect a taking that requires just compensation, and therefore exposes 

United States to liability for substantial damages. 

Breach of Contract 

The Gila Bend Act provided that, in return for waiving its claims against the 

United States and giving up title to its land and water rights on the Gila Bend Reservation, the Nation could acquire replacement lands in unincorporated Maricopa, 

Pima, or Pinal Counties that would be treated as a reservation ‘‘for all purposes.’’ 

In 1987, the Nation entered into a settlement agreement—i.e., a contract—with the 

United States in which it did indeed relinquish its claims and its land and water 

rights in consideration for the United States’ promises in the 1986 Gila Bend Act. 

S. 2670 breaches that agreement. It is settled law that when the United States enters into a contract, its rights and duties under the contract are governed by the 

same law applicable to contracts between private individuals. United States v. 

Winstar Corp., 518 U.S. 839, 895 (1996). If S. 2670 is enacted into law, the Nation 

will sue the United States for breach of this 1987 agreement. Damages will likely 

be substantial, based on the fact that lost future profits from the Nation’s planned 

gaming facility during the term of the compact would amount to hundreds of millions of dollars, if not more. 

Water Rights Claims 

The legislative history underpinning the Gila Bend Act makes clear that a ‘‘major 

component in [the tribe’s] valuation of the reservation is its as-yet unquantified 

Winters right to the surface and underground flow of the Gila River, with a priority 

date of 1882.’’ H.R. Rep. 99–851 at 8 (1986). Thus, when the Nation gave up its 

right to the Gila Bend Indian Reservation, it also gave up its right to the water 

rights appurtenant to it. The legislative history explains, ‘‘Expressed in terms of 

practicably irrigable acres times 5.4 acre-feet, this right could amount to as much 

as 32,000 acre-feet. . . [T]he tribe thus views the value of their land and its water 

and any damage claims against the United States and third parties to be in excess of $100,000,000.’’ Id., at 8–9 (emphasis added). In other words, the lost water right 

alone was worth in excess of one hundred million dollars in 1986—certainly that 

water would be worth even more today. 

By unilaterally altering the terms of the settlement agreement, H.R. 1410/S. 1670 

effectively reopens claims that were settled by the agreement, including the Nation’s 

claims to nearly 36,000 4 acre-feet of water per year and additional water rights-related damage claims against the United States and third parties worth in excess 

of $100,000,000 (in 1986 dollars). Because the Gila Bend Reservation has an 1882 

priority date, the Nation’s 36,000 acre-feet per year would have priority over the 

vast majority of claimants in the ongoing Gila River General Stream Adjudication. 

Litigation over the quantification and delivery of the Nation’s Gila River water 

rights is ongoing, and this legislation therefore would destabilize the adjudication 

of the water rights claims of thousands of municipal and private interests throughout Arizona with junior priority dates. 

H.R. 1410/S. 2670 Breaks the Court-Confirmed Promises Embodied in the 

Tribal-State Compacts 

Apart from setting dangerous precedent in the context of Indian land and water 

rights settlements, H.R. 1410/S. 2670 also interferes with the mutually-agreed to 

contractual promises that are embodied in the tribal-state compacts entered into by 

the State of Arizona, the Nation, and the Gila River and Salt River tribes. Although 

the proponents of H.R. 1410/S. 2670 attempt to re-write history by arguing that the 

Nation made some ‘‘promise’’ not to conduct gaming in the Phoenix area, in fact, 

as revealed in the litigation, the Gila River and Salt River tribes and the State of 

Arizona: (1) were well aware of the Nation’s right to conduct gaming on its settlement lands long prior to the signing of the 2003 gaming compacts, and (2) tried but 

failed to insert language into the compacts to prevent tribes from gaming on afteracquired lands (such as replacement lands acquired under a land claim settlement). 

In the end, the tribes and the State explicitly agreed in the tribal-state compacts 

they each signed that gaming on lands acquired in accordance with IGRA’s equal 

footing exceptions would be permitted. A federal court has confirmed that ‘‘the Nation’s construction of a casino on the Glendale-area land will not violate the Compact’’ and that ‘‘gaming on that land is expressly permitted’’ by IGRA. Arizona v. 

42 

Tohono O’odham Nation, 944 F.Supp.2d at 753–54 (D. Ariz. 2013). H.R. 1410/S. 

2670 would re-write the tribal-state compact to provide these wealthy tribes a monopoly that they tried and failed to obtain in good faith negotiations—and break the 

promises made to the Nation. 

1992–2001: The Nation informs Arizona, Gila River, and Salt River of its Rights 

under the Gila Bend Act 

Evidence presented in court showed that the Nation’s opponents were repeatedly 

made aware of the Nation’s rights under the 1986 Gila Bend Act. During a recorded 

July 15, 1992 meeting, the Nation explicitly informed gaming negotiators for the 

State of its position that land acquired under the 1986 Gila Bend Act would be eligible for gaming. Arizona et al. v. Tohono O’odham Nation, CV11–0296–PHX–DGC, 

7/15/92 Tohono/Arizona Reps. Mtg. Tr. 3. Later, in the mid-1990s, a representative 

of the Nation informed the former president of the Salt River tribe (and key 2002 

compact negotiator) of the Nation’s right to conduct gaming on land acquired under 

the 1986 Gila Bend Act. Id., Antone Dep. at 76 (5/24/12). Finally, in 2001, one of 

the Gila River tribe’s compact negotiators was informed about the Nation’s land acquisition rights under the Gila Bend Act. Id., Supp. Resp. to Pl. First Set of NonUnif. Interrog. (5/14/12). 

2001–2002: Arizona and Gila River Try to Introduce Compact Language to Prevent 

Gaming on After- Acquired Lands During Compact Negotiations; the Tribes 

Collectively Reject These Attempts 

What is more, as the district court noted, the Nation presented evidence that the 

State and Gila River ‘‘proposed during negotiations that gaming on after-acquired 

lands be prohibited’’ but that this proposal ‘‘was rejected and not included in the 

Compact.’’ Arizona v. Tohono O’odham Nation, 944 F.Supp.2d at 767. During later 

compact negotiations, ‘‘some State legislators attempted to . exclude all gaming on 

after-acquired lands precisely to avoid gaming on noncontiguous reservation land 

such as the [Nation’s] Glendale-area land.’’ Id. These efforts also were rejected. Id. 

2002: Gila River, Salt River, and Arizona Agree to Language in the Compact that 

Expressly Permits Gaming on After-Acquired Lands 

In the end, the State, Gila River and Salt River explicitly agreed in the final tribal-state compact that gaming would be permitted on any Indian lands that meet the 

requirements of IGRA, including on ‘‘after-acquired lands’’ acquired under a land 

claim settlement. See Compact at Section 3(j)(1), Proposition 202, A.R.S. § 5– 

601.02(I)(6)(b)(iii). The federal court found that the tribes ‘‘did not reach . . . an 

agreement ‘‘ that would ‘‘prohibit the Nation from building a new casino in the 

Phoenix area.’’ Arizona v. Tohono O’odham Nation, 944 F.Supp.2d at 753 (emphasis 

added). 

2007: Gila River Proposes a Compact Amendment to Prevent Gaming on AfterAcquired Lands in Maricopa, Pima, and Pinal Counties 

In 2007, following numerous failed attempts to protect its gaming monopoly, Gila 

River proposed (unsuccessfully) a compact amendment to ‘‘preclude gaming on afteracquired lands.’’ Lunn Dep. 72. Gila River’s proposal was limited to after-acquired 

lands in Maricopa, Pima, and Pinal Counties—the same three counties in which the 

Nation is permitted to acquire settlement lands in trust under the Gila Bend Act. 

2009–2012: Gila River and Salt River Build Three New Casinos in the Phoenix 

Metropolitan Area 

Gila River and Salt River now claim that the tribes all promised that there would 

be ‘‘no new casinos in Phoenix.’’ In support of this argument Gila River and Salt 

River point to statements in 2002 by Arizona’s then-governor: ‘‘Proposition 202 ensures that no new casinos will be built in the Phoenix metropolitan area... for 

at least 23 years.’’ But Gila River and Salt River themselves have gone on to build 

three new casinos in the Phoenix metropolitan area. See, e.g., GRIC opens New Wild 

Horse Pass Hotel and Casino, Gila River Indian News (November 2009, available 

at http://www.gilariver.org/index.php/news/849-gric-opens-new-wild-horse-passhotel-and-casino); (‘‘On Fri, Oct. 30, the Gila River Indian Community opened the 

doors to its new 100,00 square foot Wild Horse Pass Casino’’), New Vee Quiva Casino & Hotel ground breaking, Gila River Indian News (July 2012, available at 

http://www.gilariver.org/index.php/july-2012-grin/2919-new-vee-quivacasino-ahotel-ground-breaking) (‘‘The official ground breaking ceremony for the new Vee 

Quiva Casino & Hotel commenced on June 7, 2012 in Komatke, District 

6... ’Quite frankly I’m very impressed with the contemporary and cultural elements that will be added into this new casino-hotel,’ Mendoza said’’); Casinos’ quarterly revenue fall eases, Arizona Republic (May 5, 2010, available at http:// 

43 

www.azcentral.com/business/news/articles/20100505biz-casinos0505.html) 

(‘‘ . . . the Gila and the Salt River Pima-Maricopa Indian communities... each 

invested hundreds of millions of dollars to open new casino-hotels amid the recession’’) 

2012: Multiple Witnesses (including those representing Gila River, Salt River, and 

the State) Contradict the ‘‘No New Casinos in Phoenix’’ Argument 

Like its sister tribes Gila River and Salt River, the Nation explicitly stated at the 

outset of negotiations that it did not wish to be bound by the statements of other 

tribal leaders. In light of this fact, the court held that it ‘‘cannot conclude’’ that that 

the Nation shared the views about gaming in Phoenix that other tribal organizations may have had. Arizona v. Tohono O’odham Nation, 944 F. Supp.2d at 766. 

And as explained by witnesses not aligned with either side of the litigation, the concept of ‘‘no new casinos in Phoenix’’ simply was never a theme or a deal point in 

the negotiations over the gaming compacts and Proposition 202: 

• W.M. Smith Dep. 32 (Cocopah Tribe representative) ‘‘Q. Do you recall the concept of no new casinos in Phoenix ever being broached in the negotiations? A. 

No.’’ 

• Clapham Dep. 35–36 (Navajo Nation representative) ‘‘Q. There was not a single 

event, to the best of your recollection, that could constitute a request for a tribe 

to waive its rights to build a casino in the Phoenix area? A. There were discussions about reducing the number of authorized facilities in exchange for transfer 

of machine rights. But I don’t remember any specific request to deal with not 

putting another facility in Phoenix.’’. 

• Ochoa Dep. 25 (Yavapai Prescott Tribe representative) ‘‘Q. So until this lawsuit 

came about, though, you had never heard anybody talking about how Prop 202 

would permit no new casinos in the Phoenix area and only one in Tucson? A. 

Absolutely not. No. It wasn’t discussed at the meetings I attended.’’ 

Even Gila River, Salt River, and the State’s own witnesses in litigation confirmed 

that the Nation never promised not to conduct gaming in the Phoenix area. See, 

e.g.: 

• Walker Dep. 43 (State representative) ‘‘Q. [Y]ou can’t point to any member of 

the Nation or any of their lobbyists or lawyers who have ever specifically stated 

that there would be no new casinos in the Phoenix area. Correct? A. Correct.’’ 

• Severns Dep. 53–54 (State representative) ‘‘I have no recollection of a conversation in which [the Nation] mentioned they would or would not build [a casino 

in Phoenix].’’ 

• Lewis Dep. 44 (Gila River representative) ‘‘Q. [D]uring the negotiations, no one 

from the Tohono O’odham Nation ever stated that the Nation would never game 

in the Phoenix area?...A. I don’t recall any, right.’’ 

• Makil Dep. 95 (Salt River representative) ‘‘Q. [Y]ou don’t recall any specific representative of the Nation affirmatively stating that the Tohono O’odham would 

not build casinos in the Phoenix area. Correct? A. No one ever said anything 

to me.’’ 

• Landry Dep. 43 (Salt River representative) ‘‘Q. During the negotiations, no one 

from the Tohono O’odham ever specifically stated that the tribe would never 

game in the Phoenix area, did they? A. That’s correct.’’ 

• LaSarte Dep. 62–63 (Arizona Indian Gaming Association representative) ‘‘Q. 

And at no time did the State ever ask the Tohono O’odham to agree never to 

game in the Phoenix metropolitan area. Correct?... [A.] I do not recall any 

discussions for or against the possibility of Tohono O’odham gaming in the 

Phoenix metropolitan market[.]’’ 

2012–2013: The Federal Court Rejects Gila River and Salt River’s ‘‘Promise’’ 

Argument on the Merits 

The Nation’s opponents have incorrectly claimed that the courts did not reach the 

merits of the ‘‘promise’’ arguments. This is not true. The district court soundly rejected that argument—and not simply on sovereign immunity grounds as the proponents of this legislation claim. In fact, as the oral argument colloquy involving 

Gila River’s lawyer (Mr. Tuite) reveals, the court found this argument totally unconvincing: 

MR. TUITE: The plaintiffs have alleged sufficient facts to show that the parties 

understood and endorsed the concept that a fundamental premise of the compact was the principle that the agreement would not result in new gaming faVerDate Mar 15 2010 09:56 Feb 24, 2015 Jkt 091740 PO 00000 Frm 00047 Fmt 6633 Sfmt 6621 S:\DOCS\91740.TXT JACK
44 

cilities being constructed in the Phoenix metropolitan area. The Nation now 

claims, however, that the compact permits exactly what is alleged it cannot do. 

THE COURT: Mr. Tuite, if that was a fundamental premise of this compact, 

it would have been a real easy thing to say that in the compact, right? 

MR. TUITE: Well, a lot of things in retrospect could be easy things to say. Yes, 

Your Honor, that’s true. But we think there are, based on the allegations we 

made, good reasons to think that the parties didn’t feel it necessary to spell that 

out. 

THE COURT: Well, that’s a pretty surprising idea, in my mind, for parties who 

are represented by lawyers and who are negotiating a contract that will become 

a compact that has an integration clause that says no other understandings or 

agreements not in writing will be enforceable. 

For somebody with that kind of a clause going into the compact saying this other 

understanding is so fundamental that we don’t to have say it just didn’t make 

any sense to me. 

Arizona v. Tohono O’odham Nation, Tr. Mot. to Dismiss at 28:15—29:12 (emphasis added). 

Most devastating to Gila River ’s and Salt River’s arguments was that section 25 

of the very Compact that each Arizona tribe signed with the State includes an integration clause which explicitly provides that ‘‘This Compact contains the entire 

agreement of the parties with respect to the matters covered by this Compact and 

no other statement, agreement, or promise made by any party, officer, or agent of any 

party shall be valid or binding.’’ (emphasis added). In other words, the parties 

agreed in the compact that the words of the compact would trump any supposed 

‘‘side-bar’’ promises and that such promises would have no effect. Arizona v. Tohono 

O’odham Nation, 944 F. Supp.2d . at 770–74. As explained by the court, because 

‘‘[t]he fully integrated compact discharges any unwritten understandings,’’ id. at 

774, plaintiffs’ claims seeking to enforce a promise that is not in the compact were 

foreclosed on their merits. There is no basis whatsoever for Congress to overturn the 

district court’s carefully considered conclusions at the behest of the losing litigants. 

Concerns About Expansion of Gaming 

During this Committee’s July 23 Oversight Hearing on Indian Gaming, concerns 

were expressed about the potential of another Tohono O’odham casino being developed in the East Valley. These arguments are based on the worst kind of fear 

mongering, and reveal that tribes pushing for enactment of H.R. 1410 and S. 2670 

have run out of credible legal and policy arguments. In fact, the Nation has no other 

eligible land in the Phoenix Valley, and it would be a practical impossibility to acquire such land and undertake such an effort before our existing tribal-gaming compact expires. What is more, we have repeatedly stated, again and again, that the 

Nation has no such plans. Nevertheless, should even stronger confirmation be needed to dispel these arguments, the Nation stands ready to work to address these concerns. 

Conclusion 

Chairman Tester, Vice Chairman Barrasso, and honorable members of this Committee, thank you for giving the Nation the opportunity to testify at this legislative 

hearing. It is our great hope that the United States Senate will reject a return to 

the era of treaty-breaking, and that you will help Congress preserve and protect the 

commitments the United States made to the Tohono O’odham Nation when it enacted the Gila Bend Indian Reservation Lands Replacement Act. By so doing, the 

Senate will also ensure that the integrity of the tribal-state gaming compacting 

process, as it has been set into law under the Indian Gaming Regulatory Act, will 

not be undermined by private special interest bills such as H.R. 1410 and S. 2670. 

The Nation respectfully, and urgently, asks that you help ensure these bills do not 

become law. 

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SUPPLEMENTAL TESTIMONY


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Attachments 


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The State of the Tohono O’odham Nation: A Review of Socioeconomic Conditions 

and Change, by the Taylor Policy Group, attachment has been retained in the Committee files. 

The CHAIRMAN. Thank you, Chairman Norris, for your testimony. 

Thank you all for your testimony. Senator McCain? 

Senator MCCAIN. Thank you, Mr. Chairman. 

Chairman Norris, would you like to, for the record, supply the 

amount of money or revenue that your casinos have gained for the 

tribe on an annual basis? 

Mr. NORRIS. Mr. Chairman, Senator McCain, I will be happy to 

give that some consideration, but I will not do that without the express authorization of my legislative counsel. 


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Senator MCCAIN. So you won’t tell us how impoverished you are. 

I got it. 

I will provide for the record, Mr. Chairman, the hearings that 

Senator Inouye and I had, including that where the attorneys generals, especially, of States that came and testified before our Committee, one of their great concerns was what would happen is exactly happening now. That was one of the reasons why we had 

great difficulty getting the support of governors and attorneys generals, because they said if we don’t look out, we are going to have 

Indian gaming operations in the middle of our towns and cities. So 

I would be glad to provide the record of the hearings and the conclusions and the statements that Senator Inouye and I made at the 

time of the passage of the Indian Gaming Regulatory Act, which 

clearly was designed to prevent a non-contiguous, middle of a metropolitan area Indian gaming operation, for which the people have, 

maybe their elected representatives have, maybe some like Mr. 

Sherwood have changed their mind over time. But they have not 

been able to make their will known as far as a very significant impact not only in Glendale but in the entire West Side. 

So Mr. Sherwood, out of curiosity, I think you used to be very 

much opposed and even wrote articles in opposition to this. What 

changed your mind? 

Mr. SHERWOOD. Thank you for the question, Mr. Chair and Senator McCain. When I campaigned, I had campaigned against this 

proposed, based on the information I had. And I had read quite a 

bit of information on it. The thing that was distressing to me, 

though, was that in the very beginning there was a half hour conversation, when the city first found out about this in April 2009. 

That was the only conversation that the previous administration 

had. 

I was always quite upset by the fact that we didn’t have the dialogue, we weren’t doing very good in the courts. So when the new 

council got seated in January 2013 and we took care of the hockey 

arena situation, we turned our attention to the casino issue, which 

again had been laboring for five years, and started having that informal dialogue, and learned quite a bit more about the project 

from the fact this could benefit us in many more ways than what 

the gaming compact even called out for. 

So those informal discussions led into formal fact-finding in the 

November time frame, which led to negotiations in March. And 

having gone through that and having voted on this a couple of 

months ago to approve the project and to unequivocally set ourselves against this legislation, and the benefits, certainly after talking to other developers, we have had several developers come to us 

since this casino project was announced, wanting to develop on 

land in Glendale city proper. 

Senator MCCAIN. Well, thank you. Chairman Norris, I have before me information that, I am not sure where it came from, but 

it alleges that your annual revenue from gaming is $68,200,000.00. 

Is that in the ballpark? 

Mr. NORRIS. Mr. Chairman, Senator McCain, as I stated before, 

without the authorization of my legislative counsel, I am not at this 

point able to disclose, agree or disagree with your information. 

58 

Senator MCCAIN. So you refuse to tell this Committee, who is expected to support your effort to establish a casino, that you won’t 

even tell me whether this is a correct or incorrect number, 

$68,200,000? 

Mr. NORRIS. Mr. Chairman, Senator McCain, the courts have already made that determination on whether or not the Nation is 

within its legal right to be able to establish. And our current compact also authorizes it as well. 

Senator MCCAIN. That is not in response to the question I asked, 

Mr. Chairman. You refuse to give, to authenticate or disagree with 

roughly $68,200,000.00 in revenue for your Nation? Is that correct, 

you do not wish to give that information? Agree or disagree? 

Mr. NORRIS. Mr. Chairman, Senator McCain, I am not agreeing 

or disagreeing. What I am saying is—— 

Senator MCCAIN. Actually what you have done is refuse to answer questions before this Committee. I am not sure why you 

came. 

Mr. Mendoza, is there a concern, Chairman Mendoza, President 

Mendoza, is there a concern that there may be other loopholes such 

as this exploited in using this precedent that other casinos would 

be established in the valley? 

Mr. MENDOZA. Mr. Chairman, Senator McCain, thank you for 

that question. I have been hearing about this particular bill and if 

it would create that precedent. In my mind, no. The Act has been 

very consistent with congressional precedents. If you will allow me, 

I will allow my attorney here to offer some specifics. Ms. Binney? 

Ms. BINNEY. Thank you, Senator McCain. The concern that you 

have is a legitimate concern, in that Tohono O’odham, if they are 

able to build this Glendale casino, can actually shut down their 

other three casinos in the Tucson area and move them up to the 

Phoenix area. Basically using the same legal theory. That is why 

the East Valley mayors are so concerned, because they thing the 

same thing that is happening in Glendale can happen in the East 

Valley. 

I think it was Congressman Gosar last time who brought a map 

that showed 200 county islands in other parts of the Phoenix Valley where the same thing can happen. 

But more importantly, in the negotiations and during litigation, 

handwritten notes have come out from Tohono O’odham’s representatives, basically indicating that they would do such a thing. 

They are aware that they have that legal ability, if they are successful in Glendale, to shut down the other three casinos and move 

them up to the Phoenix area. That is one of the biggest concerns 

of the East Valley mayors. 

Senator MCCAIN. Well, Mayor Weiers, you find yourself in the 

minority here. Maybe you can tell us how that happened, going 

from the majority to the minority on this issue. I am sure it didn’t 

have anything to do with a $26 million commitment over several 

years. 

Mr. WEIERS. Mr. Chairman, Senator McCain, I don’t actually 

know how I found myself in that position. I have been on a one 

mind and one thought ever since this issue came up, when I was 

in State legislature. I know in our campaign that people had ran 

their campaigns stating certain views and certain beliefs. I guess 

59 

I never really expected people to change their opinion. But I don’t 

know exactly how we found ourselves, the same facts, the same 

truths that were there two years ago are the same facts and truths 

today. Nothing has changed. People’s opinions have changed and 

how they have changed their mind because of those facts and 

truths, I don’t know. 

And sir, I don’t know if that is really the question that maybe 

I should be asked, but I’m not exactly sure how we came to that 

position. 

Senator MCCAIN. Thank you. 

Mr. Chairman, it bears repeating to all the witnesses in response 

to some of the statements that the Constitution calls for the Congress to have a special responsibility as far as Native Americans 

are concerned. It is written in the Constitution. So although some 

may view this hearing and our action as being unwanted interference, it is a specific Constitutional responsibility of the Congress 

of the United States. 

So Mr. Chairman, this is a very busy week. We will be leaving 

tomorrow for quite a while. And you were kind enough to hold this 

hearing for me, and I take that as a very special favor that you 

granted me. I want to express openly and repeatedly my appreciation for your doing this. I thank you, Mr. Chairman. 

The CHAIRMAN. Thank you for those kind words, Senator 

McCain. We always appreciate your commitment to the Senate and 

to this Committee. And we thank you for your leadership on a 

number of issues, including this one. 

I have a few questions here, I will start with Governor Mendoza. 

Governor, when it comes to tribal gaming in Arizona being successful, could you talk about the kind of success that Gila River has 

enjoyed because of gaming? 

Mr. MENDOZA. Thank you for that question, Senator. Gila River 

does enjoy the benefits from our casinos. We have been able to fully 

fund for our students to go to college, any college in the world. We 

have been able to provide funding for our public safety, police, fire, 

our emergency management program. We are able to provide programs for our elders, our youth, housing, you name it. We have 

been able to do a lot for our community. Again, we are very thankful and blessed. 

The CHAIRMAN. I commend you on your commitment to your people. Education is one of my priorities. 

You reference, when it comes to expansion of gaming, you reference a commitment made by the tribes in 2002 that there would 

be no additional gaming facilities in the Phoenix area. In the current gaming compacts, there is a specific limitation on the Tohono 

O’odham from building a fourth facility in the Tucson area. 

If the parties thought enough to put a Tucson limitation expressly in the compact, why wouldn’t the State include such a limitation around Phoenix? Any insight into that? 

Mr. MENDOZA. Thank you, Senator Tester. Senator Tester, I am 

not an attorney. I am going to allow my attorney to answer that 

for me. 

The CHAIRMAN. Well, I think that is a good point that you are 

not an attorney. I am not one, either. So Allison, since you are, 

have at it. 

60 

Ms. BINNEY. I think there is a little bit of confusion. It depends, 

so in Arizona, it is different than in most other States. Most of 

those State, the governors can just go and negotiate a compact directly with the tribes, enter into it. In Arizona, that is not the case. 

The government had to get authority from the voters to enter into 

compacts. So the voters voted on a model compact. I actually have 

the proposition that the voters had there. 

So Tohono O’odham does say, like, nowhere in the model compact 

or the compact does it say, Tohono O’odham can’t go into Phoenix. 

One, there was no need to say that in the compact, because no one 

ever thought that would happen. But two, in all the negotiations, 

which are the key part of what this bill is trying to address, 

Tohono O’odham specifically said, their fourth casino would be in 

the Tucson area or in a rural area. They never once indicated that 

they would somehow go 100 miles up to the Phoenix area. 

But I will say the proposition that has the model compact that 

the voters actually saw when they voted to give the governor authority, there is a chart in there. And in the chart it shows the 

number of casinos that the tribes in Arizona were authorized to 

build under the old compacts, and the number of casinos that the 

tribes would be authorized to build under the new compact, the 

model compact that the voters were voting on. 

In the Phoenix area tribes, all are shown as giving up a right to 

an additional facility that they had under the old compact. Tohono 

O’odham, because they are not a Phoenix area tribe, kept the same 

number of casinos, the right to build the same number of casinos. 

So Gila River is shown as giving up an additional casino, right to 

an additional casino. Salt River gave up a right to an additional 

casino. Ak-Chin gave up a right to an additional casino. Fort 

McDowell gave up the right to an additional casino and so did 

Pascua Yaqui. Tohono O’odham didn’t have to give up the right to 

an additional casino, because they weren’t in the Phoenix area. 

So in our view, it is in the compact. Why else would these charts 

be in here showing that the Phoenix tribes gave up rights to additional casinos and Tohono O’odham didn’t, if it wasn’t intended 

that the whole goal of the compact was to limit the number of facilities in the Phoenix area? 

The CHAIRMAN. Okay. If you don’t mind, Allison, I want to ask 

you another question, since you are an attorney, since you know 

the law. And I say this in the most friendly way. When I talked 

to Chairman Norris, and I think it was referenced in one of your 

testimonies, maybe it might have been Mr. Washburn’s testimony, 

about breaking ground on a facility already. So ground has been 

broken. 

If we were to pass this bill, would there be a takings issue? 

Ms. BINNEY. No. And I thought it was interesting that Assistant 

Secretary Washburn didn’t address this issue at all. Because he 

was aware of it. And Senator McCain asked him about it last time. 

The fundamental reason why is because this bill just provides a 

temporary restriction on gaming activities on certain lands. That is 

what IGRA does. The Indian Gaming Regulatory Act was passed 

to restrict gaming on tribal lands. So if this bill is a takings, then 

so is the Indian Gaming Regulatory Act. And that has been around 

25 years and has been upheld again and again and again. 

61 

The CHAIRMAN. So in one point, you are talking about policy that 

prevents gaming activities that happen with IGRA. This is an actual physical construction, you don’t see that there is any difference 

there. And I ask this because I don’t know. 

Ms. BINNEY. Yes, and we actually when it came up in the last 

hearing, Senator McCain asked it. We actually went and did a 

thorough analysis. Because I will say, last Congress there were 

some legitimate concerns raised about Tohono O’odham and we addressed them in this new bill. But we looked at it, and the other 

reason why it is not a takings is because Congress does these types 

of bills fairly frequently, actually, restricting gaming on lands. And 

they can build a resort. They can build a new sports stadium. They 

can do economic activities. 

The CHAIRMAN. That is fine, thank you. Thanks, Allison. 

Chairman Norris, a similar question to what I just asked Governor Mendoza. You have gaming facilities, can you discuss what 

benefits you have gotten from these gaming facilities and, while 

you are in that vein, could you also discuss unmet needs that are 

still out there by your tribe? 

Mr. NORRIS. Mr. Chairman, I too am not an attorney. I am the 

elected chairman of my nation, and I have an obligation to speak 

for my people. 

The CHAIRMAN. Yes. 

Mr. NORRIS. So I will do so. There are still third world conditions 

that exist in my tribal community, and many tribal communities 

nationwide. The Nation has had an enormous amount of benefit in 

comparison to where we were prior to gaming. We have been able 

to construct different facilities that were only dream facilities that 

we were needing within our communities, to be able to provide the 

necessary services. We have been able to create a government of 

employees that are able to provide the necessary services that 

many of our Nation’s members require. We have been able to provide scholarships to our members. 

Prior to gaming, we had probably less than 300 members of our 

Nation that acquired bachelor’s, associate’s, master’s and doctorate 

degrees and some law degrees. Today we have graduated more 

Tohono O’odham with those types of degrees, this many years later. 

My council continues to allocate some $5 million toward scholarship programs for our Nation. 

So we have had an enormous amount of benefit from the results 

of gaming. But we still have those third world conditions that continue to exist. 

As far as unmet needs, Mr. Chairman, we know today that we 

have 500 families that are homeless on the Nation. We know today 

that there are many people within our communities that do need 

housing. We know today that much of the roads that are within our 

tribal communities that are being used and mis-used by the U.S. 

Border Patrol because of the influx of border agents on our Nation, 

really do a wear and tear on our roads. And they are primarily 

BIA–IRR roads. So there is a need for us to work hand in hand 

with the Department of Interior, Bureau of Indian Affairs, to try 

and address the roads conditions that are so needing to be addressed, to be able to deliver the services, to be able to enter and 

exit our tribal communities nationwide. 

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We have a reservation that is 2.8 million acres square in size. 

We have some 80 villages within that geographical area. The reservation is vast. The villages are remote. We have homes that do 

not have running water. We have homes that do not have electricity. So there is a serious amount of unmet need in my tribal 

community. 

The CHAIRMAN. Thank you, Chairman. 

Mayor Weiers, you are a former State legislator, you worked in 

city government as mayor, and I think you understand the actual 

text of the laws and contracts and the weight that that carries with 

those contracts and that text. In this case, there was a specific limitation, correct me if I am wrong, on Tohono O’odham developments around Tucson but not Phoenix. With that said, if this limitation on gaming in the Phoenix area was important, why was it 

not included in the current contract or Prop 202? 

Mr. WEIERS. Chairman Tester, all I can tell you is the knowledge 

that I have of talking with one of the authors, Senator McCain. He 

had told me point blank that there was never ever any intention 

in their mind that this would ever be an issue. And I don’t believe, 

quite honestly, that the average person, the non-attorney people, 

would ever have thought something like this. I guess that is why 

we have attorneys, to sit around and think of ways to get around 

stuff. 

But I don’t believe anybody ever believed that this was ever 

going to be an issue. And it is an issue, and quite honestly, all this 

bill is trying to do is just, let’s do what everybody said and thought 

we were going to do, and then when that compact is over, we will 

renegotiate. Chances are that we will probably end up with more 

casinos in the valley, almost certainly. 

The CHAIRMAN. Okay, thanks, Mayor. 

Councilman Sherwood, your testimony discusses the impacts that 

the agreement with the Tohono O’odham would have on the city of 

Glendale, positive impacts. Could you talk about those benefits of 

this development? And while you are on that, if there is a down 

side that comes to mind, could you talk about that, too? 

Mr. SHERWOOD. Thank you, Chair. Right off the bat, I can’t see 

of any down side in the negotiations and the settlement agreement 

that we concluded with the Tohono O’odham in August. They are 

covering existing infrastructure, new infrastructure, water. It is not 

costing the city a penny. How often do you get a development 

where you don’t have to give in to anything? 

In terms of the development, we were hurt pretty hard with the 

downturn with our sports and entertainment. There were eight 

funded projects that were to occur south of the University of Phoenix stadium where the Arizona Cardinals play. One of them was 

Mr. Bidwell’s CB101 project, before he started building. Those either went into litigation afterwards or the developers pulled back. 

Those are slowly coming back, but not near the pace that was expected. 

So our sports and entertainment area, which has two professional sports teams, a large entertainment area along with some 

retail, was hurt vastly by that. So when we have the mega events, 

like when we have the Super Bowl next February, we don’t have 

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anything to keep people in the area, so they go off into Scottsdale 

and Phoenix. 

A project like this resort will entice other development. In fact, 

within weeks of us signing that agreement, we had two major developers, one that had done a large scale project in Phoenix, come 

through and they were only interested in us now because of this 

project. They were looking at land within the city of Glendale to 

develop that would be real close to the sports and entertainment 

area. 

So yes, we are looking at a lot of development activity that will 

directly benefit our city coffers. And then again in the deal that 

was referenced earlier about the $26 million or so that we get directly into the general fund from the Tohono O’odham. In fact, we 

have already received a check for $500,000, 10 days after the 

agreement was signed. That helps a city that has struggled, as has 

been widely reported, because of our past deals with some of the 

sporting facilities that we have. It has sorely helped our community. 

The CHAIRMAN. Okay. You talked about jobs. How many jobs? 

Mr. SHERWOOD. Jobs, in terms of the operations, you are going 

to see 3,000 jobs, 1,500 of them probably indirect, 1,500 direct in 

terms of construction jobs. Right now it is scheduled for three 

phases, the casino and then the attached resort and probably a 

year later, another resort, based on how things are moving along. 

So you are talking thousands of construction jobs over this project 

that is going to take place over the next four years. But in terms 

of actual jobs at the West Valley, I would say about 3,000. 

The CHAIRMAN. Once again, I want to thank all of you for making the trek to Washington, D.C. I know it is not easy and some 

of you have made it twice. I thank you for that. And I mean that. 

This is obviously an emotional issue and it is an important issue. 

Note that the hearing will remain open for two weeks, and I encourage all stakeholders to submit written statements for the 

record. I want to say that again, this hearing record will remain 

open for two weeks. And if you are a stakeholder in this issue, I 

would encourage you to write written statements for the record. 

With that, once again, thank you all. This hearing is adjourned. 

[Whereupon, at 3:22 p.m., the hearing was adjourned.] 

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A P P E N D I X 

PREPARED STATEMENT OF HON. JOHN INSALACO, MAYOR, CITY OF APACHE JUNCTION, 

ARIZONA

Chairman Tester, Vice Chairman Barrasso, Members of the Committee, thank 

you for the opportunity to submit my testimony on S. 2670, the Keep the Promise 

Act. My name is John Insalaco and I am the mayor of the City of Apache Junction, 

Arizona, which is in the Phoenix metropolitan area. 

First and foremost I want to thank our Senators, Senators McCain and Flake, for 

hearing our concerns and introducing this bill. And I thank you, Mr. Chairman and 

members of this Committee, for acting promptly to further examine this issue. 

While I have my own personal reasons for supporting this legislation, other Phoenix area mayors and I are unified in a singular concern: until Congress affirmatively acts on this legislation, the Tohono O’odham Nation (TON) could open a casino near any of our cities within any of the more than 200 county islands within 

Pima, Pinal and Maricopa Counties. 

Just like in Glendale, this could happen without our consent, without our input, 

and even without our knowledge. Without Congressional action, a single Washington, DC bureaucrat’s decision threatens to change our communities forever and 

our local governments have lost control in fending off the unwanted proliferation of 

gaming in our neighborhoods. That outcome is wholly unacceptable to our constituents, which is why we collectively ask that this committee quickly approve this important bill. 

We represent communities that support tribal governments and the sovereign 

rights of our Nation’s first peoples. While we may not see eye to eye on all issues, 

we have a strong track record of collaborative efforts that have fostered successful 

Government-to-Government relationships. Much of this collaboration is a direct result of the current compacts that promotes tribal governments and local governments to work together to address common issues. We appreciate and value the relationships we have developed with our neighbors, and believe this sentiment is reciprocated by many of the tribal governments throughout Arizona. 

That’s why we were so surprised to learn of TON’s actions. We could not believe 

that a government would surreptitiously acquire land for a new Phoenix area casino 

even while promising Arizona voters that there would be no new casinos in the region. 

Unfortunately the deception did not stop in Glendale. According to TON’s attorneys, the tribe has the right to open even more casinos in the Phoenix metropolitan 

area. 

Like Glendale, many of the 200 county islands in Pima, Pinal and Maricopa counties are unfit for the development of major gambling establishments. These parcels 

are in and around large residential neighborhoods, near schools, and near religious 

institutions. In other words, the county islands are in precisely the type of neighborhoods that Phoenix and Arizona voters decided were not suited for further casino 

development. 

The development of new casinos in the Phoenix metropolitan area—whether in 

Glendale or in any of the other county islands in the metropolitan area—represents 

a fatal breach of trust between the tribal governments who advocated for Arizona 

Proposition 202 and the people of our state. When we heard the promise of ‘‘no new 

casinos in the Phoenix area,’’ we trusted our friends and neighbors and took them 

at their word. And in exchange for that promise, the voters of our state awarded 

these tribes with the exclusive right to run casinos in Arizona. 

Now the actions of one tribe have put this trust, and our longstanding working 

relationship with Arizona’s tribal nations, in jeopardy. 

TON’s decision to knowingly and willingly deceive voters forces us and many of 

our constituents to rethink the promises that we have made to tribes as well. While 

we do not have the authority to nullify the compact, the Proposition 202 compact 

expires in 2027; and we now have to think long and hard about whether we should 

66 

renew that agreement. It would be a shame if the cavalier actions of one tribe upended a successful system that has benefitted all tribes in our state. 

Even more troubling was the recent testimony of Assistant-Secretary of Indian Affairs (AS–IA), Kevin Washburn, who clearly advocated on behalf of TON without 

making any mention of, or demonstrating any consideration for, the impact that the 

TON’s potential casino would have on the Tribal-State compact and our communities. 

This Washington, D.C. bureaucrat presumed to know more about the voters’ intentions than the voters themselves by claiming that the Phoenix gaming market 

could afford to have more casinos, even though voters clearly wanted a cap on the 

number of casinos in the area when they approved Proposition 202. AS–IA 

Washburn casually dismissed voters expectations by stating that the parties ‘‘eliminated reliance on any statements or promises made during negotiations, unless they 

were included within the four corners of the compact,’’ while ignoring that all urban 

area tribes except for TON gave up rights to additional casinos to meet State and 

voter expectations and TON retained one additional casino by assuring State and 

tribal negotiating parties that it would be located in the Tucson area or in rural 

parts of its reservation. 

AS–IA Washburn did not discuss or consider any of the fraudulent actions and 

promises that the TON made to State negotiating parties, the general public and 

other tribes during the compact negotiations and the tribes’ campaign to convince 

voters to approve Proposition 202, when all the while it never intended to live up 

to these promises. Further, how AS–IA Washburn chose to interpret the Gila Bend 

Indian Reservation Lands Replacement Act has very direct consequences on our constituents and other Arizona tribes, but his testimony showed no impartiality or concern for non-TON interests, including the interests of other Arizona tribes. AS–IA 

Washburn refuses to act as an impartial and responsible agency decision-maker, instead leveraging his official position to serve as TON’s personal advocate and the 

lives of our communities are now threatened by this agency action. 

Despite years of trying to convince TON to act responsibly and attempting to reason with the Administration, it has become clear that Congressional action is now 

Arizona citizens’ only recourse to preserve our balanced and mutually beneficial system. And the legislation under consideration today does just that. 

S. 2670, the Keep the Promises Act, is a narrowly tailored bill that preserves the 

agreement that was made with voters in 2002 by simply prohibiting new casinos 

from being constructed in the Phoenix area until 2027, when the current compact 

expires. 

Equally as important is what the bill does not do. The Keep the Promises Act does 

not prohibit TON from taking land into trust. It does not impact the tribe’s right 

to acquire land under the Gila Bend Act. And it does not prohibit the tribe from 

conducting gaming on newly acquired land after 2027. AS–IA Washburn falsely and 

passive aggressively accused the ‘‘promise’’ of S. 2670 as being illusory. 

In our eyes, this legislation is far from perfect because we would prefer that Indian reservations not be dropped within or city limits. But we believe the bill makes 

adequate concessions, while preserving the rights and agreements made by our constituents. 

We hope you too will see this as a fair, moderate piece of legislation, and ask that 

you move to quickly enact the bill. 

Thank you for the opportunity to submit our testimony today, and we look forward to working with you to ensure the bill is enacted during the 113th Congress. 

PREPARED STATEMENT OF HON. ADOLFO F. GA ́MEZ, MAYOR, CITY OF TOLLESON, 

ARIZONA

As the mayor of the City of Tolleson, Arizona, a community within close proximity 

to the Tohono O’odham Nation’s West Valley Resort, I offer my adamant opposition 

to the S. 2670. My City was the first to unanimously pass a resolution in favor of 

the Nation’s casino project. We have since been joined by the Cities of Glendale, Peoria, and Surprise. 

There is tremendous support for this project among my constituents as well as 

throughout the West Valley. The Nation’s West Valley Resort represents a unique 

amenity for our region that will attract new visitors, new businesses, and create 

thousands of jobs—not just at the casino but across the West Valley. 

The proposed legislation, S. 2670, seeks to stymie major economic development 

thereby denying my constituents access to the greater prosperity. I urge you not to 

allow this harmful bill to go forward. 

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As more than a dozen legal rulings have found, the Nation’s project complies with 

all of the relevant federal laws and state compact, which is why the special interests 

opposed to this project have pushed this legislation, to make up for their defeats 

in court by rewriting the law in their favor. The arguments presented to the Committee by the Nation’s opponents during the S. 2670 hearing have all been addressed and rejected throughout judicial proceedings that span over five years. 

The opposition continues to repeat these claims, but that doesn’t make them any 

more accurate. The real intent of S. 2670 is to protect a few East Valley special interests at the expense of the West Valley’s economic development. 

I trust that you and the Indian Affairs Committee will make the right decision, 

based on all the facts. Thank you for your time and consideration. 

PREPARED STATEMENT OF HON. LINDA KAVANAGH, MAYOR, TOWN OF FOUNTAIN

HILLS, ARIZONA

Chairman Tester, Vice Chairman Barrasso, Members of the Committee, thank 

you for the opportunity to submit our testimony on S. 2670, the Keep the Promise 

Act. My name is Linda Kavanagh and I am the Mayor of the Town of Fountain 

Hills, Arizona. 

Like other elected leaders of the Phoenix metropolitan area, I am very concerned 

that the Tohono O’odham Nation (TON) could unilaterally open a casino on a county 

island located within our city limits. 

The county islands located near my community are precisely the type of neighborhoods that Phoenix and Arizona voters decided were not suited for further casino 

development. Without Congressional action, a rich gaming tribe and a single Washington, D.C. bureaucrat threaten to change our communities forever and strip us of 

our powers as local governments to fend off unwanted proliferation of gaming in our 

neighborhoods. Because that outcome is wholly unacceptable to our constituents, we 

collectively ask that this committee quickly approve the Keep the Promise Act. 

Further, in approving tribal gaming in and upholding Arizona tribes’ right to have 

casinos in 2002 voters were promised that there were would not be any new casinos 

in the Phoenix area. All tribes except one have kept that promise. After TON’s long 

kept secret came to light, we could not believe that a tribal government would secretly look for land for a new Phoenix area casino even while promising Arizona voters that there would be no new casinos in the region. Unfortunately this deception 

may not stop in Glendale. According to TON’s attorneys, the tribe has the right to 

open even more casinos in the Phoenix metropolitan area. Now we must wonder if 

the tribe will purchase or has already purchased land in our communities. It is because of the actions of one tribe that our longstanding working relationship with Arizona’s tribal nations is now in jeopardy. 

When we heard the promise of ‘‘no new casinos in the Phoenix area,’’ the voters 

of our state awarded tribes with the exclusive right to run casinos in Arizona. The 

current gaming compact will expire in 2027 and because of one tribe’s broken promise voters will have to think long and hard about whether we should renew tribal 

gaming, or whether to only allow tribes to operate casinos. In 2027, if not sooner, 

the central question to voters may be whether tribes should retain their exclusive 

right when one tribe cannot be trusted. 

Our concern for the future of Indian gaming in Arizona grew considerably after 

hearing the September 17 testimony of Assistant-Secretary of Indian Affairs, Kevin 

Washburn. Mr. Washburn clearly advocated on behalf of TON without making any 

mention of how TON’s casino threatens Arizona, including other Arizona tribes. Mr. 

Washburn seems to be in the business of rubber stamping Indian casinos, which will 

only encourages tribes to adopt a cynical approach to expand gaming in our state. 

Additionally, Mr. Washburn ignored discussion of the fraudulent actions and 

promises that the TON made to State negotiating parties, the general public and 

other tribes during the compact negotiations. Evidence of their fraudulent conduct 

was the tribes’ campaign to convince voters to approve Proposition 202 on the heavily advertised premise of ‘‘no new casinos in Phoenix’’ when all the while it planned 

to purchase land in Glendale for the purpose of opening a casino. 

It is clear that Mr. Washburn has chosen a way to interpret the Gila Bend Indian 

Reservation Lands Replacement Act that has very direct consequences on our constituents and other Arizona tribes. His testimony shows that he has no impartiality 

or concern for non-TON interests, including the interests of Arizona residents and 

its tribes. 

Despite years of trying to convince TON to act responsibly and attempting to reason with the Administration, it has become clear that Congressional action is now 

Arizona citizens’ only recourse to preserve our balanced and mutually beneficial sysVerDate Mar 15 2010 09:56 Feb 24, 2015 Jkt 091740 PO 00000 Frm 00071 Fmt 6601 Sfmt 6621 S:\DOCS\91740.TXT JACK
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tem. S. 2670, the Keep the Promises Act, is a narrowly tailored bill that preserves 

the agreement that was made with voters in 2002 by simply prohibiting new casinos 

from being constructed in the Phoenix area until 2027, when the current compact 

expires. Equally as important is what the bill does not do. The Keep the Promises 

Act does not prohibit TON from taking land into trust. It does not impact the tribe’s 

right to acquire land under the Gila Bend Act. And it does not prohibit the tribe 

from conducting gaming on newly acquired land after 2027. 

Although this legislation does not address the long term problem of off-reservation 

gaming in Arizona, it does ensure that tribes live up to the commitments and assurances they gave to voters during their campaign to get the exclusive right to have 

casinos in Arizona. We hope you will see this as a fair, moderate piece of legislation, 

and ask that you move to quickly enact the bill. 

Thank you for taking my testimony. 

PREPARED STATEMENT OF HON. THOMAS BEAUTY, CHAIRMAN, YAVAPAI-APACHE

NATION


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PREPARED STATEMENT OF SHERRY J. COUNTS, CHAIRWOMAN, HUALAPAI TRIBE

I am Sherry Counts, Chairwoman of the Hualapai Tribe. On behalf of the 

Hualapai Tribe, I believe it is imperative to present this testimony to the Senate 

Committee on Indian Affairs following the Committee’s September 17, 2014 hearing 

on S. 2670, ‘‘Keep the Promise Act’’ as introduced by Senators McCain and Flake. 

This issue is one that has the Hualapai people very concerned. It is often said that 

there is more than one side to every story. The Committee has only heard part of 

the story and before acting; the Hualapai would like the Committee to consider 

other aspects of what S. 2670 means to my people and why we ask Congress to pass 

this legislation. I thank the Senate Committee on Indian Affairs for the opportunity. 

The Hualapai Tribe is a federally recognized tribe located in rural northwestern 

Arizona. Our land runs along the Grand Canyon and the Colorado River between 

Kingman and Seligman, Arizona on historic Route 66, very scenic territory. We have 

about 2,300 members with about 1,300 residing within our reservation. Now we rely 

on tourism, ranching and arts and crafts to drive our local economy. Our closest 

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munity of Peach Springs, Arizona. This is where people go to purchase groceries, 

gas, and clothing. Many of our youth travel the 50 miles to Kingman, one way and 

each school day, to attend high school. 

We do not operate a casino. Many years back, we did make an attempt to open 

a small gaming facility, but we were not successful. Our facility was forced to closed 

a very short time after we opened. In retrospect, our remote location as well as our 

proximity to the large Las Vegas gaming establishments make the operation of a 

successful gaming operation in our remote community unviable. However, the 

Hualapai Tribe has a fully executed gaming compact with the state of Arizona. We 

participate in gaming and receive gaming revenue through our Transfer Agreements. Gaming revenue provides the Hualapai Tribe with additional resources to 

pay for basic subsistence needs for our members. As a result, this issue is of critical 

importance to us. Our story presents another facet of the dispute relating to the 

Tohono O’odham Nation’s proposed West Valley Resort. Our story is one that is 

often overlooked and perhaps misunderstood. Our story presents real facts and considerations of the potential impacts the proposed facility has on one tribe in rural 

Northwestern Arizona. As a result, we believe it is necessary, as a Tribe that potentially faces perhaps the biggest of repercussions if the West Valley Resort is opened, 

to provide our position and response on S. 2670 as well as to address some of the 

issues and arguments raised during the Committee’s hearing on September 17, 

2014. 

Arizona Gaming—Delicately Balanced and Intentionally Limited by Design 

Although the Hualapai Tribe does not operate a casino, we have a fully executed 

Tribal-State Gaming Compact with the state of Arizona. Our former Chairwoman, 

Louise Benson participated in the negotiations and discussions over the design of 

gaming in 1999 that ultimately ended up on the Arizona ballots as Proposition 202 

in the election of 2002. The compacts included in Proposition 202 were the result 

of over two years of negotiations and are delicately balanced and intentionally limited gaming that benefits all tribes with at Tribal-State Gaming Compact as well 

as the citizens of Arizona. The balance has worked for many years and is often cited 

as the Indian gaming standard. 

Gaming in Arizona, by design is limited in size, scope and growth. These carefully 

engineered limits were discussed multiple times among the tribes, including the 

Tohono O’odham Nation and with the Governor’s Office. Gaming in Arizona is limited as to the number of facilities, number of machines per tribe and per facility, 

limited as to the types of games, and limited with regard to wager amounts. Plans 

for responsible growth are also tied to changes in population so that growth would 

be responsible growth and the markets would not be saturated. To get to this point, 

every tribe had to be willing to give and make sacrifices for the benefit of all tribes. 

The Hualapai Tribe sacrificed its facility allocations in order to transfer machines 

to tribes in the metro areas so that we could benefit from gaming. We did this, not 

knowing whether there would be a change in circumstances for us that would, at 

some point, make operation of a facility for us a viable option. We all understood 

the balance was necessary for all tribes with Tribal-State Gaming Compacts could 

benefit from gaming. Now, the Tohono O’odham’s plans threaten to upset this balance. 

In addition to specifically designed limits, there was a plan so that each of the 

tribes with Tribal-State Gaming Compacts could benefit from gaming, from the 

tribes located in high density urban locations, such as the Tohono O’odham Nation’s 

land in the Tucson metropolitan area to the most rural of tribes, like the Hualapai 

Tribe. To this end, Arizona tribes are classified into three categories: The Metro 

Gaming Tribes, those tribes located near Phoenix and Tucson, the Rural Gaming 

Tribes, or tribes located near areas with a population to support a gaming facility 

such as those located in Globe, Yuma, Camp Verde, Payson, and Show Low. Finally, 

there are the Non-Gaming Tribes also called the Transferring Tribes, which include 

those tribes with tribal lands in remote areas and without the ability or population 

to operate a casino. The Hualapai Tribe is a Non-Gaming Tribe. As a Non-Gaming 

Tribe we lease our machine allocations to other tribes in the metro areas through 

contractual agreements we refer to as Transfer Agreements. As a result of our 

Transfer Agreements, we participate in gaming and receive much needed revenue. 

We are able to use a resource we have by virtue of our Tribal-State Gaming Compacts to benefit financially. The believe the viability of our Transfer Agreements is 

potentially at risk due to Tohono O’odham Nation’s plans. Most Transfer Agreements contain provisions that automatically terminate the Transfer Agreements if 

the ‘‘Poison Pill’’ provisions of the Tribal-State Gaming Compacts are triggered, thus 

removing all limits on gaming and thus eliminating the need for the Metro Tribes 

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clude early buy-out provisions for the Metro Tribes to exercise if they need to terminate a Transfer Agreement early. Obviously, an additional casino in the Phoenix 

market will result in changes in market conditions that places the Transfer Agreements at risk because the new facility may lead to the Arizona legislature legalizing 

commercialized non-Indian gaming, which will definitely trigger the Poison Pill or 

changes market conditions so that the Metro Tribes exercise the early termination 

provisions of the Transfer Agreements. Either way, my Tribe, the Hualapai Tribe 

bears the biggest burden of the outcome of this dispute. We will be eliminated from 

the gaming industry and will lose much needed revenue. The Tohono O’odham Nation’s proposed West Valley Resort has the potential to effectively change the face 

of gaming in Arizona and tribes like mine, stand to lose the most. 

Deception Then or Deception Now—Deception is Deception 

In late 1999, before entering the negotiation process an Agreement in Principle 

was developed for the Tribal Leaders to sign as evidence of the commitment to work 

together in good faith. This document included language that specified that in the 

event an individual tribal interest superseded the common goal, there would be full 

disclosure. On January 7, 2000, Edward Manual, Chairman of the Tohono O’odham 

Nation. In addition to the Tohono O’odham Nation’s pledge through its tribal leader 

on January 7, 2000, the Tohono O’odham Nation actively participated in negotiations and later in the campaign to get gaming authorized by Arizona’s voters. During this process, the clear understanding and expectation and understanding of all 

participating tribes was expressed multiple times, either in testimony to the state 

legislature or in campaign materials urging support for Proposition 202, the initiative that authorized Indian gaming in Arizona. The same understanding expectation 

was also expressed and communicated by the Governor’s Office and the Secretary 

of State through various press releases and in materials circulated to the voters. 

More specifically, on April 8, 2002, David LaSart, AIGA Executive Director testified 

before the Arizona Legislative Committee that Proposition 202 compacts, ‘‘include 

the limitation of facilities in the Phoenix-metro area to the current number [7] and 

allows the possibility for only one additional facility in Tucson.’’ In the voter information pamphlet developed and circulated by the 17-Tribe Indian Self-Reliance Initiative to support Proposition 202, the voters were advised, ‘‘[u]nder Prop 202, there 

will be no additional facilities authorized in Phoenix, and only one additional facility 

permitted in Tucson.’’ The Tohono O’odham Nation was one of the 17 tribes that 

provided funding to support Proposition 202 and that was used to pay for this voter 

information pamphlet. In Governor Hull’s February 20, 2002 Press Release, she advised the residents of Arizona, the agreement reduced the number of gaming facilities in Arizona by 25 percent and that there would be ‘‘no additional casinos in the 

Phoenix metropolitan area and one additional casino in the Tucson area.’’ The Secretary of State’s Voter Guide for the November 5, 2002 election contains consistent 

information about Proposition 202 stating, ‘‘Voting ‘yes’ on Proposition 202 ensures 

that no new casinos will be built in the Phoenix metropolitan area and only one in 

the Tucson area for at least 23 years.’’ Despite all of Tohono O’odham Nation’s active participation in the campaign process, the Tohono O’odham Nation is now saying there was never a promise to limit the number of machines in the Phoenix 

metro area. Their actions beg a few relevant questions. First, if there was never a 

clear understanding and agreement that there would be no additional casinos in the 

Phoenix metro area, why didn’t the Tohono O’odham speak up during the campaign 

to advise all parties that they did not agree to the campaign promise that the negotiated agreement meant that there would be no new casinos in the Phoenix metro 

area? This statement was not a one-time statement; it was one that was made repeatedly on many different occasions by many different people, both verbally and 

in writing. How is it that everyone from the Governor to the Secretary of State to 

the other Tribal Leaders understood that the agreement that would be passed by 

Proposition 202 meant there would be no new casinos in the Phoenix metro area 

but Tohono O’odham did not? 

Now, to support their new position, in written testimony submitted to the Committee, the Tohono O’odham refer to various 2012 depositions to support their position that there was never a promise of ‘‘no new casino in Phoenix’’. They include 

excerpts from depositions of W.M. Smith, Clapham, Ochoa, Severns, Lewis and 

LaSarte. See Written Testimony of the Honorable Ned Norris, Jr., Senate Indian Affairs Committee Legislative Hearing on S. 2670, Keep the Promise Act of 2014, September 17, 2014. However each of these individuals state, they do not recall any 

specific promise. (Emphasis added). Basic statement analysis of ‘‘I do not recall’’ 

suggests the individual had the information at one time but simply does not remember it at the present time. Thus, the deposition excerpts only mean that at the time 

the deposition was taken, the witnesses merely did not remember. It does not mean 

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the promise of ‘‘No New Casinos in Phoenix’’ was not made. Multiple written documents, including the campaign materials, the Governor’s February 20, 2002 Press 

Release as well as the Secretary of State’s Voter Information Guide from the November 2002 Election written contemporaneously to the event, quite clearly evidence the promise. 

Either the Tohono O’odham intentionally chose not to correct the record and allowed misleading information to be provided to the voters in hopes their plans 

would not be discovered or they subsequently changed their position and now denying that they agreed with the numerous statements made during the Proposition 

202 campaign. 

City of Glendale 

The Tohono O’odham Nation then presents the City of Glendale as supportive of 

their West Valley Resort. However, it wasn’t until the City of Glendale found itself 

in financial turmoil that Glendale changed its position on the West Valley Resort. 

Glendale’s motivation is purely financial and it can be argued that the Tohono 

O’odham Nation bought their support. In various news articles, Councilman Gary 

Sherwood, who testified before the Committee about the benefits of the proposed 

West Valley Resort and elaborating what a great partnership the parties will enjoy, 

is quoted as saying ‘‘We’re hunting for money.’’ Proposed West Valley Casino is Pitting Valley Indian Tribes Against One Another, Monica Alonzo, Phoenix New Times, 

February 6, 2014. Councilwoman Norma Alvarez has stated, ‘‘we’re so broke.’’ Glendale City Council Begins Formal Casino Negotiations with Tohono O’odham Nation, 

Monica Alonzo, Phoenix New Times, March 20, 2014. Following the decision to begin 

formal negotiations with the Tohono O’odham Nation, the City of Glendale applied 

for almost $800,000 in grants from the Tohono O’odham Nation. After years of opposing the Tohono O’odham Nation’s proposed West Valley Resort, ‘‘Glendale decided to try and reach into the tribe’s pocket.’’ Glendale Applies for Nearly $800k 

in Grants from Longtime Nemesis Tohono O’odham Nation, Monica Alonzo, Phoenix 

New Times, June 16, 2014. Then in August 2014, the City of Glendale and the 

Tohono O’odham Nation entered an agreement wherein the Tohono O’odham Nation 

agreed to provide the City of Glendale at least $26 million over a 20-year period. 

The agreement required the Tohono O’odham Nation to make an initial payment of 

$500,000 to the City of Glendale within 10 days of the agreement and annual payments of $1.4 million beginning 6 months after gaming begins. Glendale Council 

Oks Casino Deal with Tribe, www.azcentral.com, August 13, 2014. According to the 

written testimony of Councilman Gary Sherwood, the City of Glendale has already 

received a ‘‘good faith payment’’ of $500,000. See Written Testimony of Gary Sherwood, Councilman, City of Glendale, Arizona to the Senate Committee on Indian Affairs, S. 2670, September 17, 2014. To be direct, it is obvious that the support of 

the City of Glendale was purchased. However, based upon the Tohono O’odham Nation’s history, the City of Glendale should be concerned about what could happen 

to their partnership with the Tohono O’odham Nation should the ‘‘poison pill’’ provisions of the Tribal-State Gaming compact be triggered or if the Tohono O’odham Nation changes its mind and denies that they ever agreed to a partnership with the 

City of Glendale as they have with the other tribes. 

Bureau of Indian Affairs Opposition to S. 2670 Filled with Misinformation 

We listened in shock and despair to the comments provided to the Committee by 

Assistant Secretary Washburn. Assistant Secretary Washburn works for the Bureau 

of Indian Affairs, an agency with a mission to ‘‘enhance the qualify of life, to promote economic opportunity, and to carry out the responsibility to protect and improve the trust assets of American Indians, Indian tribes, and Alaska Natives.’’ See 

www.indianaffairs.gov/WhoWeAre. Yet, Assistant Secretary Washburn was advocating for one Arizona tribe over the other tribes, including the Hualapai Tribe and 

his testimony was completely inappropriate. As an agent of the Bureau of Indian 

Affairs, the Assistant Secretary is supposed to support all tribes. During his testimony, he referred to the Tohono O’odham Nation as ‘‘impoverished’’ with significant 

unmet needs. The Hualapai Tribe, like most Arizona tribes, struggles with the 

same, if not more significant unmet needs. To be direct, a reference to unmet needs 

should not justify the Assistant Secretary’s position in opposition of S. 2670. In fact, 

if Assistant Secretary Washburn were considering unmet needs, his consideration 

would have and should have considered the unmet needs of ALL of Arizona’s tribes. 

In addition, Assistant Secretary Washburn made reference to the Phoenix market 

being in a position to support an additional casino. However, he failed to identify 

any source to support his testimony to the Committee that the Phoenix gaming market can support another casino. Assistant Secretary Washburn did not present any 

evidence that the market can withstand any additional machines. Those of us in the 

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area who work with gaming at the local level are in the best position to determine 

whether there will be an impact on the market. The act of opposing an additional 

casino is evidence enough that the market is not sufficient in the Phoenix metropolitan area to support another casino. Even if, for the sake of argument, the Phoenix 

market could support another casino, the underlying issue addressed by S. 2670 remains. Because the Assistant Secretary’s comments were so biased and presented 

without support, we urge the Committee to disregard his position. 

Possible Consequences—The Rest of the Story 

The Hualapai Tribe has used our gaming revenue to build infrastructure in our 

community and for the benefit of our members. We’ve constructed buildings such 

as the Health Building and the Boys and Girls Club, among others. Our gaming revenue assists tribal members in need of emergency food and shelter assistance, to 

pay medical care when Indian Health Service is insufficient, to provide wood for our 

elders during the harsh winter months. Several Hualapai members have received 

scholarships, funded by our gaming revenue and have used the funding to pursue 

higher education in hopes of creating a better future for our community. While we 

have other revenue sources, the loss of our gaming revenue would have negative impact that would not go unnoticed. 

There is much chatter and finger pointing about this issue being an issue of 

greed. We’ve witnessed storied painting the Tohono O’odham Nation as the victim 

and the Gila River Indian Community and the Salt River Pima-Maricopa Indian 

Community as the greedy villains wanting to eliminate the competition. Protecting 

market share is of course part of the issue, however there are bigger issues involved 

and at stake that a person unversed in the Arizona gaming industry may not understand or be aware. The Tohono O’odham Nation’s plans place the Hualapai Tribe 

at risk for losing our gaming revenue. As mentioned previously, our Metro gaming 

partners may have motive to terminate our Transfer Agreements as a business decision. Further, our compacts do not continue indefinitely. At some point, the Arizona 

Tribes will need support to continue being the exclusive providers of gaming in Arizona. In 2002, the tribes made promises to the people of Arizona that no new casinos would be constructed in the Phoenix metropolitan area. Whether the Tohono 

O’odham Nation acknowledges they were an active participant in making those 

promises or not, the written evidence is out there. If the West Valley Resort is constructed it potentially endangers our ability to negotiate for additional compact 

terms both with the state of Arizona as well as with the voters. The Tohono 

O’odham Nation’s plans make it extremely difficult for the Tribes to seek voter approval or even the support of the Governor for an extension of gaming beyond the 

current compacts. 

Each year, we closely monitor the Arizona legislative sessions to protect against 

the racetracks and commercial gaming interests who have made attempts to expand 

gaming off the reservation. In 2002, at the same time we were campaigning for the 

passage of Proposition 202, there was an attempt to expand gaming to Arizona’s dog 

and horse tracks. Each time there is financial strain in Arizona, the concept is 

brought to the forefront. Part of our success at thwarting these attempts is due to 

the fact that Indian gaming in Arizona benefits all tribes with a State-Tribal Gaming Compact, including rural Non-Gaming Tribes and the fact that Arizona has enjoyed the positive benefits of well regulated and limited gaming. We’ve also capitalized on the inability to trust and rely upon promises made by commercial and racetrack gaming as demonstrated in other jurisdictions. If the West Valley Resort is 

constructed, the trust will be broken. Our ability to make promises people view as 

trustworthy and reliable is gone; thereby placing limited Indian gaming in Arizona 

on the path of extinction. 

Of further concern are statements made by attorneys for the Tohono O’odham Nation indicating their belief that they can repeat this process again; purchase land 

under the Gila Bend Reservation Land Settlement Act in the Phoenix metropolitan 

area, have the land placed into trust and open another facility, this time, perhaps 

in the East Valley of the Phoenix. 

The Hualapai Tribe, as a Non-Gaming Tribe stands to lose the most in this situation. The Metro Tribes will survive and adjust, however, the Hualapai Tribe stands 

to lose our gaming revenue: that is the bigger but untold story. As Chairwoman of 

the Hualapai Tribe, I cannot speak on behalf of the other Non-Gaming Tribes; however, I can share my concerns about the Tohono O’odham Nation’s plans. 

S. 2670 Is Only a Time Out 

In painting themselves as a poor impoverished tribe, who happens to be able to 

pledge $26 million to the City of Glendale for their support, the Tohono O’odham 

claims S. 2670 takes something from them. That is simply untrue. S. 2670 simply 

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hits a ‘‘pause’’ button on their plans. It allows those who approved Indian gaming 

in Arizona, the Arizona voters, to have a say in the process. This action is quite 

appropriate. If at the end of the compacts, the voters want another casino in the 

Phoenix metro area, then they can authorize one. However, a new casino shouldn’t 

be forced upon the voters without their consideration of the full impacts, including 

the impact to other tribes like the Hualapai Tribe. 

Conclusion 

As the Chairperson of Hualapai Tribe, I urge you to push S. 2670 forward. While 

I would have preferred the matter to be resolved among the tribes in Arizona, it 

is evident that we can no longer resolve this issue without Congressional intervention. Thank you. 

PREPARED STATEMENT OF ROBERT HART, EXECUTIVE VICE PRESIDENT, HUNT

CONSTRUCTION GROUP

CITY OF PEORIA, ARIZONA

SEPTEMBER 29, 2014 

Hon. Jon Tester, Chairman, 

Hon. John Barrasso, Vice Chairman, 

Senate Committee on Indian Affairs, 

Hart Senate Office Building, 

Washington, DC. 

Dear Chairman Tester and Vice Chairman Barrasso, 

On behalf of the City of Peoria, Arizona I write to express opposition to S. 2670 

the job-killing legislation that attempts to break a promise of economic development 


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* The information referred to has been retained in the Committee files. 

for my community and the Tohono O’odham Nation. Our unanimous City Council 

resolution opposing this legislation is a blatant attempt to preserve market share 

of Native American Tribes on the other side of the Phoenix Metropolitan region. * 

My Councilmembers and I have spent the past 5 plus years working with the 

Tohono O’odham Nation and were pleased to celebrate the groundbreaking of the 

West Valley Resort and casino in August. The development shares a border with 

the City of Peoria and we are thrilled to have the project underway because of the 

thousands of construction jobs and money that’s already being spent in our community today because of the construction as well as the permanent jobs that will ultimately be created. 

I have personally taken vacation time from my employer and traveled to Washington D.C. to counter the misinformation and blatant lies being put forth by the 

East Valley Tribes and their supporters. The fact is that Arizona and, in particular, 

our West Valley region are growing. The majority of Greater Phoenix’s growth will 

occur in Peoria and the West Valley so there is more than enough market share 

to go around. 

As local government leaders, I respectfully request that you consider our opposition to S. 2670. We are duly elected and have literally spent years talking with our 

constituents and the Tohono O’odham Nation. Those discussions have now yielded 

construction of the project and we oppose any effort that would eliminate these important jobs and set back our economic development. 

Sincerely, 

BOB BARRETT, 

Mayor. 

RESIDENT OF GLENDALE, ARIZONA

SEPTEMBER 26, 2014 

Hon. Jon Tester, Chairman, 

Hon. John Barrasso, Vice Chairman, 

Senate Committee on Indian Affairs, 

Hart Senate Office Building, 

Washington, DC. 

Dear Chairman Tester and Vice Chairman Barrasso, and all Honorable Senate 

Committee members of the Indian Affairs Committee 

I am asking the following informational research, facts, and opinion become part 

of the Testimony for S. 2670 which is currently before your Committee. 

I am a business partner with my husband in our own business as well as a 

Facilitator of the Grassroots Tea Party Activists in the Glendale, Phoenix area. I 

have been involved in the research of the West Valley Resort & Casino project since 

it’s inception meeting with Tea Party members, citizens of Glendale, Phoenix, and 

surrounding cities, conducting poll research of various businesses here in the valley 

and have found the reception to be extremely favorable in support of the TO Nation 

and the West Valley Resort & Casino. I was originally active in attending Glendale 

city Council meetings in support of the TO Nation and continue to do so when I 

have the availability of Tuesday night Council Meetings. 

This support continues to be favorable in that the economic downturn across the 

Country, and in particular in the City of Glendale, Arizona is not good. There have 

been few new startups and a lot of store/restaurant closings in Glendale specifically. 

There were many homes up for sale in City of Glendale which has slowed down a 

little. The City of Glendale in a 5–4 decision voted and passed a Resolution in favor 

of the TO Nation. I’m sure if Council member Ian Hugh, Norma Alveraz, Gary Sherwood, and Sammy Chavira were contacted they would be more than happy to provide a copy to all Senate Members of the Indian Affairs Committee. Be it known 

that the Mayor was one of the ‘No’ votes and as you will see down in the text of 

my email, Mr. Weiers received a good bit of financial support in his 2012 Mayor 

Candidacy from GRIC (Gila River Indian Community) Independent Expenditures. 

There has always been a lot of money given to the City of Glendale in the past including a brand new Fire Truck. Westgate City Center has about 4 very large electronic billboards in front of the Arena and in the Restaurant area all constantly 

flashing/promoting GRIC Casinos. There are even a few of the Restaurants in 

Westgate City Center that do off-track betting and Poker. The City of Glendale is 

no stranger to Off-Track Betting establishments as well as Poker establishments in 

the Bars within Glendale. There are at least 2 Strip Clubs, one to the east, and one 

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* The information referred to has been retained in the Committee files. 

to the west on Northern of the West Valley Resort & Casino project, one of these 

exceptionally close to the City of Glendale City Hall. For anyone to complain about 

a Casino being near a school, of which is not ‘close/near’ the school, more like an 

approximate 1⁄2–3⁄4 mile away to the south of the property where the Resort/Casino 

is being built, is an oxymoronic statement. When one can travel just a little further 

south down 99th Ave to Glendale Ave and go into Westgate City Center and go into 

any restaurant/bar located there and be in the vicinity of gambling, drinking establishments, etc. The Casino is nothing more than an enlarged entertainment center 

with restaurants, convention centers, and drinking establishments, nothing different 

than what is in Westgate City Center or down the road going into Glendale downtown district. Directly across the street from the Casino to the north is the city of 

Peoria and restaurants, small businesses, etc. and they have no problem with the 

Casino. In fact the City of Peoria has offered to provide Water to the location. Also 

in the Resolution passed by Glendale Council, TO Nation has graciously offered to 

provide quite a bit of money over the next few years and give the water usage to 

the City of Glendale. 

Also, to show just how the integrity of the Mayor is not, he has already, in my 

and others opinion, violated the City Ordinance/Agreement with the TO Nation by 

slamming them for a 2nd time at these hearings. He is going against the promise 

and agreement passed by City of Glendale Council with the TO Nation/West Valley 

Resort & Casino. 

To reiterate a statement made to me face to face by Senator John McCain at a 

Townhall meeting when I approached him after the meeting asking questions of 

why is it ok for the State of Arizona to support the building ad financing of a Navajo/Hopi Casino—Twin Arrows in Flagstaff with no problem, promote GRIC Casinos 

all over the place within Metro Phoenix, billboards, TV ads, and Radio Commercials 

with no problem, yet condemn another Tribe truing to do the right and legal way 

to use our American Free Enterprise system and create a beautiful Resort & Casino 

and Convention Center—Senator McCain’s response to me was (he looked me 

straight in the eye) and responded to me ‘My dear, it’s all about the money, It’s Always about the money!’ and laughed. 

Please continue to read what I sent on to Mr. Washburn and ensure that all of 

this becomes part of the Testimony allowed within the allotted timeframe on S. 

2670 * which is now before your Committee of the 113th Congress (2013–2014): 

Keep the Promise Act of 2014. Comment: this so-called ‘Keep the Promise Act’ initiated by GRIC is a sham, and a disgrace to all that is honest and free and all peoples 

and tribes wanting to participate in the United States Free Market and Free Enterprise System. 

Thank you. 

Respectfully, 

78 

FRANCIE L. ROMESBURG, 

Grassroots Tea Party Activist Facilitator/Leader 


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The Committee received 517 signatories from the City of Glendale, Arizona who 

oppose the Tohono O’odham Nation’s proposed casino in the City of Glendale. The 

Committee also received 361 individuals letters from the Gila River Indian Community expressing their opposition to the Tohono O’odham Nation’s proposed off-resVerDate Mar 15 2010 09:56 Feb 24, 2015 Jkt 091740 PO 00000 Frm 00099 Fmt 6601 Sfmt 6621 S:\DOCS\91740.TXT JACK

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ervation casino in Glendale, Arizona and support for H.R. 1410. *The information 

referred to has been retained in the Committee files.* 

Æ