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H.R. 2938, ‘‘GILA BEND INDIAN RESERVATION LANDS REPLACEMENT 

CLARIFICATION ACT’’ 

LEGISLATIVE HEARING 

BEFORE THE

SUBCOMMITTEE ON INDIAN AND 

ALASKA NATIVE AFFAIRS 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

Tuesday, October 4, 2011 

Serial No. 112-67 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.fdsys.gov 

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

DOC HASTINGS, WA, Chairman 

EDWARD J. MARKEY, MA, Ranking Democrat Member 

Don Young, AK 

John J. Duncan, Jr., TN 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Mike Coffman, CO 

Tom McClintock, CA 

Glenn Thompson, PA 

Jeff Denham, CA 

Dan Benishek, MI 

David Rivera, FL 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Kristi L. Noem, SD 

Steve Southerland II, FL 

Bill Flores, TX 

Andy Harris, MD 

Jeffrey M. Landry, LA 

Charles J. ‘‘Chuck’’ Fleischmann, TN 

Jon Runyan, NJ 

Bill Johnson, OH 

Dale E. Kildee, MI 

Peter A. DeFazio, OR 

Eni F.H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush D. Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Dan Boren, OK 

Gregorio Kilili Camacho Sablan, CNMI 

Martin Heinrich, NM 

Ben Ray Luja ́n, NM 

John P. Sarbanes, MD 

Betty Sutton, OH 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

John Garamendi, CA 

Colleen W. Hanabusa, HI 

Vacancy 

Todd Young, Chief of Staff 

Lisa Pittman, Chief Counsel 

Jeffrey Duncan, Democrat Staff Director 

David Watkins, Democrat Chief Counsel 

SUBCOMMITTEE ON INDIAN AND ALASKA NATIVE AFFAIRS 

DON YOUNG, AK, Chairman 

DAN BOREN, OK, Ranking Democrat Member 

Tom McClintock, CA 

Jeff Denham, CA 

Dan Benishek, MI 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Kristi L. Noem, SD 

Doc Hastings, WA, ex officio 

Dale E. Kildee, MI 

Eni F.H. Faleomavaega, AS 

Ben Ray Luja ́n, NM 

Colleen W. Hanabusa, HI 

Edward J. Markey, MA, ex officio 

(III) 

CONTENTS 

Page 

Hearing held on Tuesday, October 4, 2011 ............................................................ 1 

Statement of Members: 

Boren, Hon. Dan, a Representative in Congress from the State of 

Oklahoma ...................................................................................................... 2 

Prepared statement of ............................................................................... 3 

Young, Hon. Don, the Representative in Congress for the State of Alaska 1 

Prepared statement of ............................................................................... 2 

Statement of Witnesses: 

Barrett, Hon. Robert ‘‘Bob,’’ Mayor, City of Peoria, Arizona ........................ 53 

Prepared statement of ............................................................................... 55 

Bistrow, Eric J., Chief Deputy, Office of the Arizona Attorney General ..... 50 

Prepared statement of ............................................................................... 51 

Enos, Hon. Diane, President, Salt River Pima-Maricopa Indian 

Community .................................................................................................... 31 

Prepared statement of ............................................................................... 33 

Franks, Hon. Trent, a Representative in Congress from the State of 

Arizona ........................................................................................................... 4 

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

Hart, Paula L., Director, Office of Indian Gaming, U.S. Department of 

the Interior .................................................................................................... 15 

Prepared statement of ............................................................................... 16 

Norris, Hon. Ned, Jr., Chairman, Tohono O’odham Nation .......................... 42 

Prepared statement of ............................................................................... 45 

Quetawki, Hon. Arlen P., Sr., Governor, Pueblo of Zuni .............................. 39 

Prepared statement of ............................................................................... 41 

Additional materials supplied: 

List of documents retained in the Committee’s official files ......................... 68 

(1) 

LEGISLATIVE HEARING ON H.R. 2938, TO 

PROHIBIT CERTAIN GAMING ACTIVITIES ON 

CERTAIN INDIAN LANDS IN ARIZONA. ‘‘GILA 

BEND INDIAN RESERVATION LANDS 

REPLACEMENT CLARIFICATION ACT.’’ 

Tuesday, October 4, 2011 

U.S. House of Representatives 

Subcommittee on Indian and Alaska Native Affairs 

Committee on Natural Resources 

Washington, D.C. 

The Subcommittee met, pursuant to call, at 2:23 p.m. in Room 

1324, Longworth House Office Building, Hon. Don Young [Chairman of the Subcommittee] presiding. 

Present: Representatives Young, McClintock, Denham, Benishek, 

Gosar, Hastings [ex officio], Boren, Kildee, Faleomavaega, Luja ́n, 

and Markey [ex officio]. 

Also present: Franks, Schweikert, and Grijalva 

STATEMENT OF THE HONORABLE DON YOUNG, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ALASKA 

Mr. YOUNG. The Subcommittee will come to order. The Chairman 

notes the presence of a quorum. Under Committee Rule 3[e], it is 

two Members, so we have a quorum and a little more. I like that. 

The Subcommittee on Indian and Alaska Native Affairs is meeting today to hear testimony on H.R. 2938, the Gila Bend Indian 

Reservation Lands Replacement Clarification Act. 

Under Committee Rule 4, opening statements are limited to the 

Chairman and Ranking Member of the Subcommittee, so that we 

can hear from our witnesses more quickly. However, I ask unanimous consent to include any other Members’ opening statements in 

the hearing record if submitted to the Clerk by the close of 

business today. 

I ask unanimous consent that the gentleman from Arizona, Mr. 

Grijalva, be allowed to participate in the hearing. Without 

objection, so ordered. 

I will also ask unanimous consent that following his testimony, 

the gentleman from Arizona, Mr. Franks, be allowed to sit with the 

Subcommittee and participate in the hearing. Without objection, so 

ordered. 

Today’s hearing concerns a bill to prohibit gaming on lands 

placed in trust for the Tohono Tribe Nation under the Gila Bend 

Indian Reservation Plan’s replacement activated in 1986. The 

immediate effect of H.R. 2938 is to prohibit the development of a 

casino resort by the Tohono Nation on a parcel of land that the 

Department of the Interior has placed in trust in Glendale, 

Arizona. 

2 

Whether or not the Committee should move forward on 

H.R. 2938 requires the study of several key issues. These issues 

include what did Congress intend when it enacted the 1986 Gila 

Bend Lands Replacement Law? Does the land claim exemption to 

end the Indian Gaming Regulatory Act apply to Glendale projects? 

What are the implications of a casino on the Tribal State Compact 

in Arizona? Does the application of laws enacted in 1986 and 1988 

result in sound public policy in 2011 or beyond, at least with respect to the situation in Glendale? 

I will defer to the witnesses to explain their views on these and 

other questions. With that, I now recognize the Ranking Member, 

Mr. Boren, for five minutes for any statement he would like to 

make. 

[The prepared statement of Mr. Young follows:] 

Statement of The Honorable Don Young, Chairman, 

Subcommittee on Indian and Alaska Native Affairs 

Today’s hearing concerns a bill to prohibit gaming on lands placed in trust for the 

Tohono O’odham Nation under the Gila Bend Indian Reservation Lands Replacement Act of 1986. 

The immediate effect of H.R. 2938 is to prohibit the development of a casino-resort by the T.O. Nation on a parcel of land the Interior Department placed in trust 

in Glendale, Arizona. 

Whether or not the Committee should move forward with H.R. 2938 requires us 

to study several key issues. These issues include: what did Congress intend when 

it enacted the1986 Gila Bend lands replacement law? Does the land claim exception 

in the Indian Gaming Regulatory Act apply to the Glendale project? What are the 

implications of the casino on the tribal-state compact in Arizona? Does the application of laws enacted in 1986 and 1988 result in sound public policy in 2011 and beyond, at least with respect to the situation in Glendale? 

I will defer to the witnesses to explain their views on these and other question. 

With that, I now recognize the Ranking Member for five minutes for any statement he may have. 

STATEMENT OF THE HONORABLE DAN BOREN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OKLAHOMA 

Mr. BOREN. Thank you, Mr. Chairman. Today the Subcommittee 

meets to hear testimony on H.R. 2938, a bill Mr. Franks introduced to prohibit the Tohono O’odham Nation from conducting 

gaming activities, under the Indian Gaming Regulatory Act, on 

property the Nation acquired near Glendale, Arizona. 

Specifically, the bill would amend settlement legislation entered 

into 25 years ago to compensate the tribe for reservation lands lost 

due to Federal error. We want to welcome Mr. Franks, and welcome to all of our witnesses. I look forward to hearing your testimonies. And I know Mr. Grijalva will be joining us shortly, which 

this is actually in his district. 

H.R. 2938 has strong support among Arizona tribes and the City 

of Glendale. The Nation and its fellow opponents of the bill are 

equally as strong, including the City of Peoria and a wide array of 

local elected officials and business leaders in Arizona. 

The issues involved are complicated, and have resulted in a vigorous dispute in Federal and State Courts, as well as garnered interest from local and national media. And sadly, the dispute over 

the Nation’s plans to pursue gaming activities on its property has 

turned neighboring cities and fellow tribes against one another. 

3 

I look forward to exploring a few questions that are still unclear 

to me. In the testimonies there is talk of a ‘‘gentleman’s agreement’’ that existed between the tribes and the State of Arizona. 

What exactly were the promises made between the tribes? What 

was the exact timeline of those promises? And similarly, what was 

the timeline of the land acquisition? What is the status of the litigation, and how does that affect government intervention? 

Finally, I would like to explore the government’s role in this case. 

Should Congress get involved? And if so, what precedent will it set 

for future tribal gaming conflicts? 

I am a strong believer in keeping promises and good-faith agreements. That said, the United States has broken its promises to 

Indian tribes since our country’s infancy. It has taken decades to 

repair our relationship as trustees to the first Americans, and we 

have a ways to go to remedy our wrongs. 

I look forward to exploring today whether this legislation will put 

us on the right path toward that goal. Again, I would like to thank 

our witnesses for being here today, and I look forward to your testimony. I yield back. 

[The prepared statement of Mr. Boren follows:] 

Statement of The Honorable Dan Boren, Ranking Member, 

Subcommittee on Indian and Alaska Native Affairs 

Thank you, Mr. Chairman. 

Today the Subcommittee meets to hear testimony on H.R. 2938, a bill Mr. Franks 

introduced to prohibit the Tohono O’odham [TO–HO–NO OH–DUM] Nation from 

conducting gaming activities under the Indian Gaming Regulatory Act on property 

the Nation acquired near Glendale, Arizona. Specifically, the bill would amend settlement legislation entered into 25 years ago by the United States and the Nation 

to compensate the tribe for reservation lands lost due to federal error. 

Welcome, Mr. Franks, and welcome to our witnesses. I look forward to hearing 

your testimonies. 

H.R. 2938 has strong support among Arizona tribes and the City of Glendale. The 

Nation and its fellow opponents of the bill are equally as strong, including the City 

of Peoria and a wide array of local elected officials and business leaders in Arizona. 

The issues involved are complicated and have resulted in vigorous dispute in federal 

and state courts, as well as garnered interest from local and national media. And, 

sadly, the dispute over the Nation’s plans to pursue gaming activities on its property has turned neighboring cities and fellow tribes against one another. 

I am sympathetic to both sides. I understand their positions and the stakes involved. But whether Congress should intervene to essentially undo a binding legal 

settlement between a trustee and its tribal beneficiary, decades after the fact, gives 

me pause. I am concerned that this bill will encourage similar attempts to amend 

well-established settlement legislation between the United State and Indian tribes. 

The United States has broken its promises to Indian tribes since our country’s infancy. It has taken decades to repair our relationship as trustees to the First Americans, and we have a ways to go to remedy our past wrongs. I have to ask if we 

are on the right path to that goal with this legislation. 

With that, I look forward to hearing from our witnesses and exploring the issue 

further. 

Mr. YOUNG. I thank the gentleman. Our first witness today is 

our colleague, the Representative from Arizona in the Second District, Mr. Trent Franks. Mr. Franks, welcome to the Committee. 

After you have finished testifying and the Members have asked any 

questions they might have, I invite you to join us on the dais and 

participate with the Subcommittee on the unanimous-consent request I made. 

Mr. Franks, you are on. 

4 

STATEMENT OF THE HONORABLE TRENT FRANKS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA 

Mr. FRANKS. Well, thank you, Mr. Chairman. And I extend my 

gratitude to the rest of the Committee members as well for your 

consideration today. I appreciate you allowing me to testify on 

H.R. 2938, the Gila Bend Indian Reservation Lands Replacement 

Clarification Act. 

Mr. Chairman, the fundamental bedrock that defines our Republic is the rule of law. Indeed, it is the rule of law that has made 

America the envy of the world, providing a level playing field upon 

which businesses can succeed or fail, based solely on their merits, 

not on their ability to curry favor with the government or to exploit 

legal loopholes, or to get away with actually flouting the law itself. 

Amidst all of the debate surrounding the Tohono O’odham Nation’s proposed Glendale casino, some who favor allowing construction to go forward seem to be missing one of the central points. My 

opposition is not an anti-tribe initiative; I harbor absolutely no ill 

will toward the Tohono O’odham people or the Nation. In fact, the 

vast majority of the other tribes in Arizona join me today in opposition to this designated casino. 

This debate is not about the jobs or economic development involved, or any of the other tangential points that some would like 

to use to distract from the real problem with the casino. My opposition stems from the very commonsense, and indeed very vital, rule 

of law that says when you enter into a contract, you are expected 

to abide by that contract. 

Incidentally, Mr. Boren mentioned a gentleman’s agreement. The 

compact that we are talking about here is a written legal contract. 

Mr. Chairman, in 2002 gaming tribes in Arizona all entered into 

this compact, and put that agreement up to the voters to vote upon. 

The agreement called for a limited number of casinos and machines 

in the Phoenix metropolitan area. While Proposition 202 was being 

debated, and passed by the voters, the Tohono O’odham Nation 

publicly pretended to support the measure, promising the only new 

casino would be constructed near Tucson. But simultaneously, the 

Tohono O’odham Nation was working behind the scenes to underhandedly secure the tract of land in Glendale, with which they 

knowingly intended to break their promise. 

Furthermore, and very importantly, Mr. Chairman, the 1988 

Indian Gaming Regulatory Act, the law that governs tribal gaming, 

says that Las Vegas-style gaming on lands acquired after October 

1, 1988, may only occur under a compact between the Indian tribes 

and the State. The Tohono O’odham Nation has broken the compact into which it entered, thereby rendering the proposed casino 

in violation of the 1988 law. 

Mr. Chairman, for all of the casino’s proponents’ attempts to 

sidetrack the conversation with red herrings, the issue really is as 

simple as that. The Tohono O’odham Nation entered into an official 

compact with 16 other tribes, and now they are attempting to 

break the compact, and their word. 

By exiting the compact, the tribe is no longer eligible, under the 

Indian Gaming Regulatory Act, to construct a casino like the one 

proposed in Glendale. It is also worth asking the question, what is 

5 

the purpose of such a compact if any party may simply break it at 

will, without ramifications? 

But assuming for a moment that the casino weren’t in violation 

of the law. Many of the arguments being brandished by opponents 

to the casino still remain dishonest. Representatives of the Tohono 

O’odham Nation claim to have proposed the casino would create 

many jobs for the West Valley. However, when the City of Glendale 

requested the data and methodology behind the numbers being repeated to the public, their request was denied by the tribe. 

And on the other hand, when the City of Glendale, per State law, 

put together a plan in 2002 outlining possible uses for the subject 

land, estimates put the number of jobs created under the City’s 

plan at 5,756 high-quality jobs. That is excluding the construction 

jobs that would also be created. 

Furthermore, the City’s plan at buildout would have created 

$10.9 million in construction sales tax; and, more importantly, $5.6 

million in annual recurring revenue. 

The casino, on the other hand, would result in no sales tax revenue for the City of Glendale. It becomes easy to see the many reasons why the City of Glendale so strongly opposes the effort of the 

Tohono O’odham to forcibly build this casino in the heart of the 

City of Glendale. 

Mr. Chairman, the fallacious arguments used by casino supporters highlight the disingenuous nature of assertions that building the casino was really just about creating jobs and economic development for the surrounding area. Developing the casino is certainly not the only means by which the tribe can profit from the 

Glendale land. This is not an either-or situation. 

It is possible to develop the land while also abiding by the law. 

Unfortunately, a Las Vegas-style casino is not one of those legitimate options, per the Indian Gaming Regulatory Act. 

To preserve the rule of law, Mr. Chairman, I have introduced the 

Gila Bend Indian Reservation Lands Replacement Clarification 

Act, a nice short name. My bill will allow the Tohono O’odham Nation to develop their land in a legal, responsible, and, I sincerely 

hope, a lucrative manner. But it will prohibit a casino, as discussed. 

The bottom line is this. If the Tohono O’odham Nation’s plan succeeds, no tribal compact will be safe from such duplicity in the future; and the very laws that govern tribal gaming will be rendered 

meaningless, subject only to the whim of any tribe that decides it 

no longer deems the law a convenience. 

Mr. Chairman, thank you again for holding this hearing today. 

It is my hope at the conclusion of today’s hearing, members of the 

Subcommittee will appreciate the importance and necessity of this 

legislation. And with that, thank you all very much. 

[The prepared statement of Mr. Franks follows:] 

Statement of The Honorable Trent Franks, 

a Representative in Congress from the State of Arizona 

Mr. Chairman, I want to thank you for holding this hearing and allowing me to 

testify on H.R. 2938, the Gila Bend Indian Reservation Lands Replacement Clarification Act. 

Mr. Chairman, the fundamental bedrock that defines our Republic is the rule of 

law. Indeed, it is the rule of law that has made America the envy of the world— 

6 

providing a level playing field upon which businesses can succeed or fail based solely on their merits, not on their ability to curry favor with the government, to exploit 

legal loopholes, or to get away with flouting the law. 

Amidst all of the debate surrounding the Tohono O’odham Nation’s proposed 

Glendale casino, some who favor allowing construction to go forward seem to be 

missing the point: my opposition is not an anti-tribe initiative—I harbor absolutely 

no ill-will toward the Tohono O’odham Nation. The fact is that every other tribe in 

the state of Arizona joins me in my opposition to the casino. This debate is not 

about jobs or economic development, or any of the other tangential points that some 

would like to use to distract from the real problem with the casino. My opposition 

stems from the very common-sense and, indeed, vital rule of law that says when 

you enter into a contract, you are expected to abide by that contract. 

Mr. Chairman, in 2002, gaming tribes in Arizona all entered into a compact and 

put that agreement to voters. The agreement called for a limited number of casinos 

and machines in the Phoenix metropolitan area. 

While Proposition 202 was being debated and passed by voters, the Tohono 

O’odham Nation publicly pretended to support the measure, promising the only new 

casino would be constructed near Tucson. But, simultaneously the Tohono O’odham 

was working behind the scenes to underhandedly secure the tract of land in Glendale with which they knowingly intended to break their promise. 

Furthermore, and very importantly, Mr. Chairman,—the 1988 Indian Gaming 

Regulatory Act—the law that governs tribal gaming—says that Las Vegas style 

gaming on lands acquired after October 1988 may only occur under a compact between the Indian tribe and the state. The Tohono O’odham Nation has broken the 

compact into which it entered, thereby rendering the proposed casino in violation 

of the 1988 law. 

Mr. Chairman, for all of the casino proponents’ attempts to sidetrack the conversation with red herrings, the issue really is as simple as that: the Tohono 

O’odham Nation entered into an official compact with sixteen other tribes, and now 

they are attempting to break the compact and their word. By exiting the compact, 

the tribe is no longer eligible, under the Indian Gaming Regulatory Act, to construct 

a casino like the one proposed in Glendale. It’s also worth asking the question: what 

is the purpose of such a compact if any party may simply break it, at will, without 

ramifications? 

But, assuming for a moment that the casino weren’t in violation of the law, many 

of the arguments being brandished by proponents of the casino still remain dishonest. Representatives of the Tohono O’odham Nation like to claim the proposed 

casino would create many jobs for the West Valley. However, when the City of Glendale requested the data and methodology behind the numbers being repeated to the 

public, the request was denied by the tribe. 

On the other hand, when the City of Glendale, per state law, put together a plan 

in 2002 outlining possible uses for the land, estimates put the number of jobs created under the city’s plan at 5,756 high-quality jobs. That’s excluding the construction jobs that would also be created. Furthermore, the City’s plan, at build-out, 

would have created $10.89 million in construction sales tax and, more importantly, 

$5.6 million annual recurring revenue. The casino, on the other hand, would result 

in NO sales tax revenue for the City of Glendale. It becomes easy to see the many 

reasons why the City of Glendale so strongly oppose the effort of the Tohono 

O’odham to forcibly build this casino in the heart of the city of Glendale. 

Mr. Chairman, the fallacious arguments used by casino supporters highlight the 

disingenuous nature of assertions that building the casino is really just about creating jobs and economic development for the surrounding area. 

Developing a casino is certainly not the only means by which the tribe can profit 

from the Glendale land. This is not an either/or situation; it is possible to develop 

the land while also abiding by the law—unfortunately, a casino is not one of those 

legitimate options, per the Indian Gaming Regulatory Act. 

To preserve the rule of law, Mr. Chairman, I have introduced the Gila Bend Indian Reservation Lands Replacement Clarification Act. My bill will allow the Tohono 

O’odham nation to develop their land in a legal, responsible—and, I sincerely hope, 

lucrative—manner. But it will prohibit gaming. 

The bottom line is this: if the Tohono O’odham Nation’s plan succeeds, no tribal 

compact will be safe from such duplicity in the future and the very laws that govern 

tribal gaming will be rendered meaningless, subject only to the whim of any tribe 

that decides it no longer deems the law a convenience. 

Mr. Chairman, thank you again for holding this hearing today. It is my hope that 

at the conclusion of today’s hearing, the members of this subcommittee will appreciate the importance and necessity of this legislation. I yield back. 

7 

Mr. YOUNG. Thank you, Mr. Franks. Mr. Schweikert, you want 

to participate in this? Without objection, we are allowing another 

Member to participate in this. 

Mr. Boren. 

Mr. BOREN. I don’t have any real questions, other than a comment. You know, I have kind of been looking at this legislation, 

and on its face I certainly considered maybe being a co-sponsor of 

the bill. I have not become a co-sponsor as of yet, but it is something I looked at. 

But you mentioned the compact, and you mentioned, talked 

about a gentleman’s agreement. Actually, in the compact there is 

not language, am I correct, that reflects an agreement that they 

will not, they will not game, is that correct? So the Nation did not 

agree to that in a compact. Am I right on that? 

Mr. FRANKS. The Nation agreed to a specific number of casinos 

in specific places, and that they would not go above that. The actual land itself, taken into trust at this point, was not discussed. 

But just so the Committee understands the process here. There 

was a corporation that no one knew, it sounded like a French 

name, and the tribe created this corporation so that no one would 

know it was even a tribe buying the land. 

So it was one of those situations where it was kind of a surreptitious effort from the beginning. And I know those are strong 

words, and I wish that it weren’t. 

Mr. BOREN. I think that is the real crux of this whole thing that 

everyone is trying to wrap their arms around. Whether it is in the 

compact, whether it is codified in language, whatever it is. When 

there is someone who has given their word, and they say hey, we 

are going to do this, we are not going to game in this area; and 

then all of a sudden yes, we are. 

And then there is the number of casinos versus this area on this 

land. And I think that is what we are all trying to figure out today. 

That is why we are having this hearing, is who knew what, when; 

who made what kind of agreement. You know, who is kind of telling the truth. 

There is obviously a lot of support for your legislation, a lot of 

groups. There are some on the other side, too, that have support 

the other way. And that is something that hopefully we can get to 

the bottom of today, and I certainly appreciate you being here. No 

further questions. 

Mr. FRANKS. Thank you. Mr. Chairman, it would just be, just for 

the record, I just want to point out that there is no ill will in my 

heart whatsoever toward the Tohono O’odham people. Their leaders 

in this case, however, the record is very clear, to comments from 

Mr. Boren, that they knew indeed that they were agreeing to this, 

and that this was part of the public discussion. There was a major 

effort, initiative, where it was on television; all of the tribes had 

represented that this would be the agreed-upon guideline going forward. 

And then at the very moment they were doing that, they were 

out trying to obtain this land for this purpose. And so that is the 

crux of the situation. 

Mr. YOUNG. Mr. McClintock. 

8 

Mr. MCCLINTOCK. Well, with the respect of the surreptitious nature of the acquisition, I think back to Walt Disney, who acquired 

the land for Disney World in the same manner. They do that to assure that prices don’t get bid up beyond market value. I don’t see 

anything nefarious in that; that is just good business sense. 

What I am unclear about is the nature of the compact itself. Did 

the tribe actually agree not to allow gambling on this, on the parcel 

that they ultimately acquired? 

Mr. FRANKS. The agreement was broader than that. They agreed 

that there would be only a certain number of casinos. And all of 

the tribes in Arizona, I believe there are 17, all agreed to that. And 

according to that scrutiny, it would have ruled this one out. 

They didn’t say well, if we buy land in Glendale, we promise not 

to build a casino on it. And the only thing I would suggest to you 

related to the Walt Disney example is that Mr. Disney, you know, 

it is a very different situation. He didn’t come in and all of a sudden declare this part of a reservation that was not subject to any 

of the local ordinances. 

Mr. MCCLINTOCK. No, but he was very clever about not revealing 

that he was the purchaser of this land as he was assembling the 

parcels. And I don’t see anything nefarious in that. Again, it was 

designed to assure that prices didn’t get bid up as a result of their 

finding out who was the purchaser. 

Mr. FRANKS. Well, that is understandable, and I don’t disagree 

with you that there are different motivations. But in this case, the 

reason for the tribe not buying the land outright is because it 

would have made it very clear where they were going early on. And 

the tribe had every motivation to keep this a secret, for reasons 

that, in my judgment, skirted the law. 

Mr. MCCLINTOCK. But that is not a crime. Engaging in commerce 

is not a crime. You know, conducting gambling on sovereign Indian 

land is not a crime. 

Mr. FRANKS. But if they can come in and create sovereign Indian 

land in any city in the nation, Mr. McClintock, the precedent is 

pretty profound. 

Mr. MCCLINTOCK. Well, yes, except as I understand it, this was 

unincorporated territory. It might have been surrounded by the 

city, but it was not part of the city. They seem to have abided by 

that provision of the agreement. 

Mr. FRANKS. Ultimately, I would just suggest to you that the 

record in Arizona is very clear: The tribe was part of a legal compact, and this breaks that compact very directly. And I think the 

implications are pretty significant across the board. 

Mr. MCCLINTOCK. Well, people have an inherent natural right to 

engage in commerce, and to do what they wish with their own 

money. I mean, I don’t gamble myself; I don’t enjoy it, and I am 

not very good at it. I feel the same about stamp collecting. But I 

certainly don’t have the right to tell other people, who are good at 

it or who do enjoy it, how they should be able to spend their own 

money. That is a natural right that government is designed to protect. 

And as I read the Declaration of Independence, when a government becomes destructive of this right, the people have the right 

to alter those terms. Which appears to be what this is all about. 

9 

Mr. FRANKS. Well, as you know, Mr. McClintock, no one supports 

property rights more than I do. This is about breaking legal agreements, and I think that that is the place where I will probably—— 

Mr. MCCLINTOCK. Well, again, can you define exactly what was 

the legal—— 

Mr. FRANKS. What we should do is to have the compact, I can 

have my staff send the compact language to your office. And we 

can—— 

Mr. MCCLINTOCK. Thank you. I yield back. 

Mr. YOUNG. Are you up next? 

Mr. KILDEE. Thank you very much, thank you for this hearing, 

Mr. Chairman. I helped create IGRA back in 1988, and that was 

shortly after the Cabazon decision, which gave the Indians their 

right, under their sovereignty, not to be governed by the State laws 

on gaming. 

So we wrote IGRA. I remember Tony Coelho, he was kind of taking the side of the commercial casinos, and I was taking the side 

of the Indian casinos at the time. And we reached a compromise. 

I think one of the concerns we had at the time—and I still have 

the concern. We have had struggles in Michigan. I have helped 

about half the tribes in Michigan get their sovereignty reaffirmed. 

But we worried about people feeling that there is going to be a 

proliferation of tribes, tribal casinos. As I said, I have helped about 

half the tribes, probably about six or seven tribes in Michigan, get 

their sovereignty restored. 

Some of them have tried to expand their number of casinos, and 

it creates a great deal of—and you and I have worked on some of 

these things that are probably for some and against some, and 

probably working for some again. But it does create, if you aren’t 

careful, in having a proliferation of tribes, that people just don’t 

trust the restrictions put in by IGRA. 

We know that Indians have the right to do this gaming under 

their sovereignty; that is according to the Cabazon decision of the 

U.S. Supreme Court. 

But I think we also have to be cautious not to create a backlash. 

And that is my only concern here. Whenever you add another 

casino, particularly when it is maybe different than the original 

compact or the original agreement, you just want to be careful not 

to create a backlash that would hurt all Indian gaming. And that 

is my concern. 

So I just wanted to give you some of the history of this. We spent 

months in this room writing IGRA, and tried to put together—it 

was not written on Mt. Sinai, it was written on Capitol Hill, so it 

is not a perfect law. But it is a fairly good law. And I want to make 

sure that we keep IGRA and maintain that right of Indians to 

game under their sovereignty, as defined by the U.S. Supreme 

Court, but not create that backlash. And I yield back the balance 

of my time, Mr. Chairman. 

Mr. YOUNG. Mr. Benishek. 

Mr. BENISHEK. Thanks, Mr. Chairman. 

Mr. YOUNG. Do you have a question? 

Mr. BENISHEK. Well, I do have a question. You know, in Michigan, as Mr. Kildee said, we have had some similar issues with offVerDate Nov 24 2008 16:43 Oct 04, 2012 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6602 L:\DOCS\70596.TXT Hresour1 PsN: KATHY
10 

reservation gaming. And you know, I want every tribe to do well 

and make a profit, and gaming allows tribes to do that. 

How has it been for you, though? I mean, did you start, when 

did you hear about all this? I mean, isn’t it kind of troubling? I 

mean, I found it really troubling when there is a compact, and then 

some, it seemed like they entered into the spirit of an agreement, 

and then, you know, something is all different now. I mean, did 

you, how did you find out about it? Does it make you feel troubled? 

I mean, it troubles me to see this happening, to tell you the 

truth. 

Mr. FRANKS. Obviously, it troubles me personally. But there is 

another aspect of it, and that is when there is reservation shopping, when there is an effort to create reservations in different 

areas in a way that seems to just empower one particular tribe, 

whether all the other tribes involved or not have any—to go in and 

turn a particular area into a sovereign nation, it has some pretty 

significant implications for our country. 

And the law, he speaks of it as IGRA, the acronym, Mr. Kildee 

was so involved in writing, gives great emphasis on these compacts. 

They are not just, you know, casual agreements. Because in 1988 

IGRA says that tribal gaming cannot be—in other words, the Las 

Vegas-style gaming on lands acquired after October 1988, which 

these were, can occur only under a compact between the Indian 

tribes and the State. 

And we acted on that law, and we had a compact in 2002. All 

the tribes, every one of the tribes, including Tohono O’odham, 

agreed to that. We put it before the voters, and the voters passed 

it based on that. 

So the notion that it is just a casual thing is, the 1988 IGRA 

gives great emphasis to the compact that was broken by the 

Tohono O’odham. 

Mr. BENISHEK. Thank you. I will yield back. 

Mr. YOUNG. Thank you, gentlemen. Mr. Eni. 

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. I want to thank 

our colleague, Mr. Franks, for his testimony. And I certainly don’t 

have any doubt whatsoever in the sincerity of his efforts in trying 

to resolve the problem that we have here with the Tohono O’odham 

Tribe. 

I am glad that we have also a distinguished Member on our 

Committee, Mr. Grijalva, who is also from Arizona. 

As you know, Mr. Chairman, the interesting thing on how the 

Indian gaming law came about was a very serious concern, given 

the fact that Indian Nations, as far as their educational and social 

standing in the country, were the lowest of the lowest. Not even 

below, it was not even under the barrel, it was below the barrel, 

in terms of any means of trying to find some economic opportunities to be self-sustaining. 

And so Congress, in its infinite wisdom, passed the bill in 1988. 

So that way there were some Members who were very concerned 

about the morality issue, that Indians are not capable of controlling 

their habits in gambling or gaming. I mean, we went into this 

moral diatribe in thinking that Indians—everybody else can gamble, all the other States and Territories can do gambling, except the 

Indians. 

11 

So we passed IGRA, in making sure that there is a compact relationship existing between the tribes, as well as with the States. 

And some tribes have been very successful in this effort to become 

more self-sustaining. 

And as a result, other situations have also developed, that Mr. 

Franks has alluded to. And if I understand it correctly, Mr. Franks, 

there was a legal compact signed between, what, nine tribes in Arizona, with the State of Arizona? 

Mr. FRANKS. I think there were 17 tribes. 

Mr. FALEOMAVAEGA. And they all signed to this compact. 

Mr. FRANKS. All of the tribes agreed to this compact. All of them 

were signers to the compact. 

Mr. FALEOMAVAEGA. And Tohono O’odham was one of them. 

Mr. FRANKS. Right. 

Mr. FALEOMAVAEGA. By the way, the original name of the tribe 

is Papago, right? 

Mr. FRANKS. I believe that is correct. 

Mr. FALEOMAVAEGA. I think they came from Samoa, Papago. It 

has a very similar ring to it. 

And so what you are saying here in this proposed bill is that the 

tribe has not kept the provisions of this basic compact that they 

signed into, along with 17 other tribes. 

Mr. FRANKS. That is the fundamental impulse of the bill, yes, sir. 

Mr. FALEOMAVAEGA. It is not that you are against the gaming aspects of it or anything. You are just—— 

Mr. FRANKS. You know, I say to you in the interest of total honesty, I have never been fond of gaming. Everyone knows that. But 

I have never at any time gone out to try to interdict tribal gaming 

in any other situation, except this one. Because this one definitely, 

in my judgment, breaks the law. 

And so I want you to know my goal here is not to have a discussion about the ins and outs of gaming. I hope that some day, that 

we will all realize that there are probably better ways to sustain 

ourselves and the tribes to sustain themselves than gaming, because conversations like this probably would never occur if—— 

Mr. FALEOMAVAEGA. My time is getting up, and I want to just 

make another observations, Mr. Franks. And that is, basically, Mr. 

Chairman, we have a double standard here. We have to pass a law 

to control the gaming aspects for Indian country, but it is OK for 

all the other States to do gaming, lottery, Bingos, everything else. 

And we are all under the same Constitution. 

We all, I realize that we have a special relationship with the Native American Indians. But we passed this law to give them opportunity. I remember distinctly, Mr. Chairman, the Pequot Tribe in 

Connecticut. Did you know that not one commercial bank here in 

the United States was willing to give any kind of financial assistance when this tribe was trying to make a go with their gaming 

operation? They had to go to Asia to get a financial, to help them 

develop their gaming operations. 

And by the way, it is one of the most successful operations. It 

has been very, very helpful to meet the needs of the Pequot Tribe 

in Connecticut. Even the Governor, a former Senator, from Connecticut was very, very supportive of this effort. 

12 

So if I am clear, for the record, Mr. Franks, you are not in any 

way opposition to whatever the Tohono Tribe may want to do with 

its gaming operations. But it seems like it is the place where they 

are having it that is causing some problems. 

Mr. FRANKS. As long as they stay within their compact, they 

don’t have anything to worry from me. Just for the record, where 

they are building, or trying to build the casino, no one else besides 

the tribe could build one, either. In other words, there is an even 

prohibition there for others to build a casino in the same place that 

they are trying to build it. 

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. 

Mr. YOUNG. Mr. Gosar. 

Dr. GOSAR. Well, I think the comment has to be, is that we have 

a double standard, yes. But sovereignty is implied, but only moderately given, under the context of the U.S. Constitution and what 

we have that jurisdiction of. 

We still have a jurisdiction over the tribes that is Congressbased, and only Congress can give that. And we gave some parameters. We gave some base lines for that. 

And what this basically does is that it also gave a confine for the 

tribes to orchestrate under State laws, which they are citizens, as 

well. And they have to work within a camaraderie type of a format, 

back and forth, within the State’s confines. 

And so I find it, it is very simple. It is that we made an agreement. Yes, I do understand why they purchased land through a 

secondary organization, for what Tom said. 

However, the confines at that point should have been discussed. 

If we were looking at to put a gaming site in there, during the compact negotiations those should have been brought up, and it wasn’t. 

Therefore, a clear violation. 

We have the same laws. The laws still have to be upheld, a certain parameter. We cannot bypass that just because it is a tribal 

entity. 

Gaming is very interesting. And I find it very interesting that my 

past comes forward on this. I used to represent Nevada. And it is 

interesting that the numbers on gaming really stay the same, as 

far as the numbers of monies transposed through the gaming industry. It is pretty level. It just gets divided up a lot bigger. 

And what really is the showcase in Las Vegas isn’t so much the 

gambling, but the shows. That is how they work their marketing; 

that is the biggest key. 

Now, I know there have been a lot of inadequacies to tribes 

throughout history. I am no part of that. But in this regards, there 

is a law, and the law was violated. A compact with the Arizona 

State, with the citizens of Arizona, with the other tribal members 

here it was violated, and it is very, very clear. There is no middle 

ground here. This was very, very clear as to the violation that occurred here. 

Anything other than having a casino is well warranted. However, 

not doing that is a key. 

And with that after said, Congressman Franks, if this compact 

were to dissolve, explain to me how this compact dissolves. Do the 

tribes benefit? 

13 

Mr. FRANKS. Mr. Chairman, Mr. Gosar, I think if the compact totally dissolves, that chaos will be the result. There will be reservation-shopping all over the State probably, and I don’t think that 

this will redound to the benefit of the tribes in any way. And I certainly believe that the proliferation of gaming within the cities 

brings with it some negative components. I don’t think we can hide 

from that pink elephant in the room. 

So I think it is chaotic if this dissolves. But more importantly, 

you mentioned the Federal law, the 1988 IGRA law. It specifically 

says that gaming must be controlled by the State compacts, which 

is exactly what we did. We followed the Federal law, and all these 

tribes agreed to that compact. And only one of them here—this is 

not some sort, I mean, the vast majority of the tribes are opposing 

this effort by Tohono O’odham to build the casino, because they understand the implications it has for the entire compact, for the entire legal construct in Arizona. And I also think it has implications 

for other States, as well. 

Dr. GOSAR. Doesn’t it open up a whole ball of wax in the State 

of Arizona for non-Indian gaming, and the parameters and bases 

and ratios that are associated with it? 

Mr. FRANKS. Mr. Chairman, Mr. Gosar, it absolutely does. 

Dr. GOSAR. So wouldn’t you say that now what we have done is, 

with an individual tribe being very individualistic, we have subjugated the tribes’ pretty much biggest moneymaker, outside of 

natural resources, to their whim, and subjugated it to the State? 

Mr. FRANKS. I believe that is essentially correct. Yes, sir. 

Dr. GOSAR. Thank you. 

Mr. YOUNG. Mr. Grijalva. 

Mr. GRIJALVA. Thank you, Mr. Chairman, and thank you and the 

Members for their courtesy in allowing me to be a part of this hearing. I appreciate it very much. 

I have no questions for my good friend from Arizona, other than, 

Mr. Chairman, to inject into the record Section 3[j] of the Arizona 

compact, which specifically allows for gaming on lands acquired by 

the Nation after 1988, as long as the land acquisition met certain 

exemptions, including, and one of those exemptions being land acquired as part of a land claims settlement. 

So as we go forward with the debate and the discussion on this, 

I think it is important that references to the compact be specific, 

and I place that into the record of this hearing. I thank you very 

much for the courtesy. 

Mr. YOUNG. I thank the gentleman. Mr. Schweikert. 

Mr. SCHWEIKERT. Thank you, Mr. Chairman; and to the Committee members, I appreciate you letting me interlope. 

In 1993 I lost a year of my life, and it was on this subject. I was 

the Majority Whip in the State House of Arizona. And it is when 

IGRA had come in front of us, and it was my job to go find the 

votes. 

We had a fairly cranky Legislature at the time in regards to the 

subject, so I bathed myself in this for not months, but it took us 

a year. And at the end of that year, we substantially created a 

framework, and let the Governor create compacts. So maybe this 

is stepping back almost 20 years for many of us. But I have to 

14 

share with you why this scares me so much, and why I also believe 

it is dangerous for all participating Native American communities. 

First off, I will swear to you, time and time and time and time 

and time again, this was the question I would get from the members of the Legislature: What if we get one in Scottsdale? I represent Scottsdale. What if we had this piece of property, that State 

trust, or this BLM, or this were traded or that were traded? And 

over and over, the lawyers who were with us, some of the legal 

staff from John McCain’s office, which actually I believe was your 

Senate sponsor, and others would come to us and reassure us to 

stop being worried about that. 

And now we are here 20-some years later, and we are back at 

that same question. 

But there is also the nature of Arizona, and this is actually one 

of the reasons to do this when Trent is up here. In my heart of 

hearts, I believe if this happens, in about half a dozen years, Arizona will be a full-scale gaming state. And here is why. 

Arizona, as you know, is an initiative referendum State. We have 

already had rumblings of we need tax revenues, let us do racinos, 

let us expand slot machines at the horse-racing tracks. Well, if you 

do that, you blow up the compacts. And thee are others who have 

said fine, I would love to have casinos in Scottsdale, I would love 

to have one downtown next to the Convention Center. 

If this goes in Glendale, in that Glendale area, I believe those advocates who desperately want to blow up these compacts, change 

the nature of Arizona, and move to a statewide casino gaming by 

option in the community standard, it does happen. Because it 

doesn’t take that many signatures to put something on the ballot 

in Arizona. And this will be the excuse to do it. And my State will 

be different half a dozen years from now. 

But more importantly, all the compacts, 20 years of work, of understanding the rules and the agreements, and huge capital investments from dozens of communities out there, will be crushed. And 

all the good that has been accomplished with IGRA will go away. 

Because the gaming is on the fringe of the urban areas, and the 

urban areas themselves will take over that market. 

And Mr. Chairman, Mr. Franks, do I at least—you have actually 

run initiatives in Arizona. I mean, am I fair in my comments? 

Mr. FRANKS. You are. I am living proof that any moron can get 

an initiative. 

[Laughter.] 

Mr. FRANKS. There is a story behind that. But yes, sir. No, it is 

not that difficult. You can do page signature drives, and it is fairly, 

it is not easy, but it is something that any group that is determined 

can put an initiative on the ballot. 

But you know, the point is here, we did have an initiative on the 

ballot. And we did pass this agreement, by the vote of the people. 

And the Federal law was adhered to, and the Federal law says that 

this will be, the State compacts will govern this. And that was violated. 

And Mr. Chairman, in case I don’t get the chance here, might I 

offer a letter from the Governor of Arizona supporting the bill? And 

also a letter from members of the Arizona Legislature, as well, for 

part of the record. 

15 

Mr. YOUNG. Without objection. 

Mr. SCHWEIKERT. And Mr. Chairman, Mr. Franks actually stole 

my little closing sentence. After years of fussing back and forth, 

and not knowing how many machines, and the Indian communities 

actually going to the ballot, we finally reached an agreement. And 

with an overwhelming vote of the public in the State. 

This is a unique agreement. You cannot have this on non-tribal 

lands outside the compacts. This is a unique franchise given to 

these tribal communities. And there is now sort of an understanding—well, actually what, legal and a vote—understanding. 

This will cause a cascade that will destroy that understanding in 

our communities. 

Thank you, Mr. Chairman. 

Mr. YOUNG. I want to thank you, Mr. Franks. This has been good 

testimony, and thanks for introducing the legislation. You are excused. 

Mr. FRANKS. Thank you, Mr. Chairman. Thank all of you. 

Mr. YOUNG. Bring up the next panel. Ms. Paula Hart, Director 

of the Office of Indian Gaming, Office of Assistant Secretary Indian 

Affairs, U.S. Department of the Interior. Ms. Hart, you are up. 

STATEMENT OF PAULA HART, DIRECTOR OF THE OFFICE OF 

INDIAN GAMING, OFFICE OF THE ASSISTANT SECRETARY— 

INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR 

Ms. HART. Good afternoon, Mr. Chairman and members of the 

Committee. My name is Paula Hart. I am the Director for the Office of Indian Gaming, in the Office of the Assistant Secretary for 

the Department of the Interior. 

Thank you for the invitation to be here to provide the Department’s testimony on H.R. 2938, the Gila Bend Indian Reservation 

Land Replacement Clarification Act, which is a bill that if enacted, 

would prohibit Class II and Class III gaming activities on certain 

lands in Arizona. 

H.R. 2938 speaks directly to one tribe, the Tohono O’odham Nation, which is a Federally recognized tribe located in southern and 

central Arizona. The Nation has approximately 30,000 enrolled 

members; it has one of the largest tribal land bases in the country. 

In 1986, Congress enacted the Gila Bend Indian Reservation 

Lands Replacement Act, Public Law 99-503, to redress flooding 

that occurred on the Nation’s land that resulted from the construction of the Painted Rock Dam on the Gila River. Both the Bureau 

of Indian Affairs and the Army Corps of Engineers assured the Nation that flooding would not impair other culture use of lands within the Nation’s San Lucy District. 

Nevertheless, construction of the dam resulted in continuous 

flooding of nearly 9,880 acres of land within the San Lucy District, 

rendering them unuseable for economic development. 

The Gila Bend Act authorizes the Nation to purchase private 

lands as replacement reservation lands. It authorizes the Secretary 

of the Interior to take up to 9,880 acres of land in Pima, Pinal, and 

Maricopa Counties, into trust for the Nation, subject to certain 

other requirements; and mandated that the land shall be deemed 

to be Federal Indian reservation for all purposes. 

16 

H.R. 2938, the Gila Bend Indian Reservation Land Replacement 

Clarification Act, would amend the original Gila Bend Act of 1986 

by prohibiting Class II and Class III gaming, as defined under the 

Indian Gaming Regulatory Act, on the lands taken into trust, pursuant to the Gila Bend Act of 1986. 

The Department opposes H.R. 2938. Congress was clear when it 

originally enacted the Gila Bend Act of 1986, where it stated that 

replacement lands shall be deemed to be Federal Indian reservation for all purposes. By this language, Congress intended that the 

Nation shall be permitted to use replacement lands as any other 

tribe would use its own reservation lands. The Gila Bend Act was 

intended to remedy damages to the Nation’s lands caused by flooding from the construction of the Painted Rock Dam. 

The United States and the Tohono O’odham Nation agreed to the 

terms of the Gila Bend Act, which included restrictions on where 

and how the Nation could acquire replacement lands. 

H.R. 2938 would impose additional restrictions, beyond those 

agreed upon by the United States and the Tohono O’odham Nation 

25 years ago. The Department cannot support unilaterally altering 

this agreement so long after the fact. 

While the purpose of H.R. 2938 may restrict the Nation from 

conducting gaming on the 53.54-acre parcel in Maricopa County, 

Arizona, the effect of H.R. 2938 could reach all lands under the 

Gila Bend Act. 

Also, H.R. 2938 could alter established law that prohibits gaming authorized under the Indian Gaming Regulatory Act 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 H.R. 2938 would be to add tribe-specific and site-specific 

limitations to IGRA’s prohibitions. 

The process of determining whether land qualifies for an exception to this prohibition is firmly established. The Department is 

aware the Nation’s request to acquire land in trust for gaming purposes in Maricopa County has been a subject of significant contention among tribes and local governments in the State of Arizona. 

However, the Indian Gaming Regulatory Act already establishes a 

process to determine whether lands are eligible for gaming, and 

that question is pending before the Department. 

The Department respects Congress’s authority to legislate in this 

area. However, we are concerned about establishing a precedent for 

singling out particular tribes through legislation to restrict their 

access to equal application of the law. 

This Administration has consistently held the position that fair 

and equal application of our laws toward all tribes is essential to 

upholding the United States’ nation-to-nation relationship with 

Indian tribes. 

For these reasons, the Department opposes H.R. 2938. This concludes my prepared statement, and I am happy to answer questions from the Subcommittee. 

[The prepared statement of Ms. Hart follows:] 

Statement of Paula L. Hart, Director, Office of Indian Gaming, Office of the 

Assistant Secretary—Indian Affairs, U.S. Department of the Interior 

Good afternoon, Mr. Chairman and Members of the Committee. My name is Paula 

Hart. I am the Director of the Office of Indian Gaming in the Office of the Assistant 

17 

Secretary for Indian Affairs at the Department of the Interior (Department). I am 

here today to provide the Department’s testimony on H.R. 2938, the ‘Gila Bend Indian Reservation Lands Replacement Clarification Act’, which is a bill that if enacted would prohibit Class II and Class III gaming activities on certain lands in Arizona. 

Background 

The Tohono O’odham Nation (Nation) is a federally recognized tribe located in 

southern and central Arizona. The Nation 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. Both 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. 

Nevertheless, 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. 

Gila Bend Indian Reservation Lands Replacement Act P.L. 99–503 

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 Mo Udall, sponsored legislation to resolve the situation. 

Congress enacted the Gila Bend Indian Reservation Lands Replacement Act (Public Law 99–503) (Gila Bend Act) in 1986 to redress the flooding of the Nation’s 

lands. 

The Gila Bend Act authorized the Nation to purchase private lands as replacement reservation lands. It authorized the Secretary of the Interior to take up to 

9,880 acres of land in Pima, Pinal, or Maricopa Counties into trust for the Nation, 

subject to certain other requirements, and mandated that the land ‘‘shall be deemed 

to be a Federal Indian Reservation for all purposes.’’ 

Assistant Secretary’s Decision 

The Nation purchased a 53.54 acre parcel (Parcel 2) 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 Parcel 2 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 is currently the 

subject of several lawsuits, one of which is pending before the United States Court 

of Appeals for the Ninth Circuit. 

H.R. 2938 

H.R. 2938, the Gila Bend Indian Reservation Lands Replacement Clarification 

Act would amend the original Gila Bend Act of 1986, by adding at the end of ‘‘Any 

such land which the Secretary holds in trust [pursuant to the Gila Bend Act of 1986] 

shall be deemed to be a Federal Indian Reservation for all purposes,’’: ‘‘except that 

no class II gaming or class III gaming activities, as defined in section 4 of the Indian Gaming Regulatory Act (25 U.S.C. 2703), may be conducted on such land.’’ 

The Department opposes H.R. 2938. 

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

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 shall be permitted to use replacement lands as any other tribe would use its own reservation 

trust lands. 

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 Tohono O’odham Nation agreed to the terms of the Gila Bend Act, which included restrictions on where and how the Nation could acquire replacement lands. 

H.R. 2938 would impose additional restrictions beyond those agreed upon by the 

United States and the Tohono O’odham Nation 25 years ago. The Department cannot support unilaterally altering this agreement so long after the fact. 

18 

While the purpose of H.R. 2938 may be to restrict the Nation from conducting 

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

H.R. 2938 would reach all lands under the Gila Bend Act—including those that 

have already been acquired. 

H.R. 2938 could 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 site-specific limitation to IGRA’s prohibition. The process for determining 

whether lands qualify for an exception to this prohibition is firmly established. 

The Department is aware that the Nation’s request to acquire land in trust for 

gaming purposes in Maricopa County has been the subject of significant contention 

among tribes and local governments in the State of Arizona. As previously noted, 

the Assistant Secretary’s decision on July 23, 2010, to approve the trust acquisition 

pursuant to congressional mandate has been the source of litigation, which is still 

pending. However, IGRA already establishes a process to determine whether lands 

are eligible for gaming, and that question is pending before the Department. The 

Department’s opposition to H.R. 2938 is not based upon any particular analysis of 

whether the land in Maricopa County would be eligible for gaming, but rather for 

the other policy concerns expressed in this testimony. 

The Department respects Congress’s authority to legislate in this area. However, 

we are concerned about establishing a precedent for singling out particular tribes 

through legislation to restrict their access to equal application of the law. This Administration has consistently held the position that fair and equal application of our 

laws toward all tribes is essential to upholding the United States’ nation-to-nation 

relationship with Indian tribes. 

For these reasons, the Department opposes H.R. 2938. This concludes my prepared statement. I am happy to answer any questions the Subcommittee may have. 

Mr. YOUNG. I thank you. Just one question, Ms. Hart. Do you 

support the compacts and the intent of IGRA? 

Ms. HART. Yes, we do. 

Mr. YOUNG. OK. I believe under that compact, the Tohono Nation, and if the tribe operates four gaming facilities, then at least 

one of the four gaming facilities shall be at least 50 miles from the 

existing gaming facilities of the tribe in the Tucson metropolitan 

area, as of the effective date; and have no more than 645 gaming 

devices, and having no more than 75 card tables. 

Now, they signed onto that compact. They said nothing about 

Glendale. Is that correct? 

Ms. HART. In that section of the compact they did not, you are 

correct. 

Mr. YOUNG. That is right. So what I am suggesting here, this is 

about location, location, location. 

Ms. HART. OK. 

Mr. YOUNG. If they were to, in fact, have the land that was acquired before the IGRA, and they signed this compact afterwards, 

it was to be in Tucson, is that correct? 

Ms. HART. Can you restate the question? 

Mr. YOUNG. Well, I mean, the land in debate here was purchased 

before. 

Ms. HART. Right, OK. 

Mr. YOUNG. Now, the compact they signed was related to Tucson, 

and that is a compact with the State, with all the other tribes, including themselves. 

Ms. HART. That is correct. 

Mr. YOUNG. So why are they trying to move into an area that 

doesn’t even, is nowhere near Tucson? It is 100 miles away? 

19 

Ms. HART. I believe you have to look at Section 3[j] of the compact, which would include, which states, and I think was read earlier in the record, that under 3[j], it does contemplate gaming on 

lands that are exceptions to the 2719 prohibitions. 

So Section 3[j] of the compact does contemplate other lands. 

Mr. YOUNG. I will have to review this, because it just appears to 

me, this compact is pretty telling. Mr. Schweikert, he worked, how 

many times you worked on it. And I am just curious, that is all. 

Mr. Luja ́n. Congratulations, you got promoted. 

Mr. LUJA ́ N. Well, for the time being. 

Mr. YOUNG. Right over Mr. Kildee? What is this freshman stuff? 

Mr. LUJA ́ N. I think Mr. Boren went down the line there, Mr. 

Chairman. With that being said, thank you for being here, Director 

Hart. It is always a pleasure to be able to visit with you. 

Do you think that this is something which Congress should get 

involved in? And if so, how? And what is the role of the State of 

Arizona that they should take in this situation? 

Ms. HART. I think that Congress enacted, in 1986, a settlement 

Act between the Department of the Interior and the Tohono 

O’odham Nation, and I think in that case that is when Congress 

acted. And they mandated that the Secretary take this action. I 

don’t think that any further clarification needs to be made. 

Mr. LUJA ́ N. If H.R. 2938 is not enacted and the Nation is able 

to move forward with their proposed plans to open a fourth casino, 

current gaming compacts could be nullified. What is your response 

to that? 

Ms. HART. From my reading, I actually looked at this in 2002, 

and then again I was asked, and I wrote a letter in 2009. As I read 

the compacts, and as in the position of the Department, is the compacts allow for, as I said, Section 3[j] allows for land to be, land 

outside of the reservation to be gamed upon, as long as it is in accordance with Section 2719 of the Indian Gaming Regulatory Act. 

And in this case, that is being looked at. And if that does occur, 

that where the tribe is in compliance with the Indian Gaming Regulatory Act, then that would not nullify the compact. 

Having said that, also you are right, unless it is like a fifth facility, which we are not aware of. 

Mr. LUJA ́ N. Has the Administration made a determination to 

that effect yet, one way or the other? 

Ms. HART. That is under review in the Solicitor’s Office. 

Mr. LUJA ́ N. Thank you, Mr. Chairman, I yield back. 

Mr. YOUNG. Just before I go to Mr. McClintock, I still can’t get 

around this idea there was a compact. And I think all the tribes 

signed onto it, and the State signed onto it. 

Ms. HART. That is correct. 

Mr. YOUNG. Would this new land, if it was purchased, how could 

you, as the Department of the Interior, issue a license to gamble 

if there was no compact? Because they would have to have a compact like the rest of them, would they not? 

Ms. HART. On the new land? 

Mr. YOUNG. Yes. 

Ms. HART. Well, because the terms of the compact itself contemplate—— 

20 

Mr. YOUNG. No. Before any gambling took place, before any of 

the tribes had gambling in Arizona, was there not a compact, and 

it had to be signed by the Governor? 

Ms. HART. Yes. 

Mr. YOUNG. And it had to be set up with the Legislature? 

Ms. HART. Yes. 

Mr. YOUNG. Now, if this new land is purchased for a gambling 

casino, the Governor is cut out and the Legislature is cut out? 

Ms. HART. Well, I would not say that the Governor or the Legislature would be cut out. I think the Governor, when he signed the 

agreement, was aware of Section 3[j] in the compact. 

Mr. YOUNG. Not, see, I disagree with that. Because the land was 

purchased, purchased prior to IGRA. 

Ms. HART. OK. 

Mr. YOUNG. It wasn’t purchased to gamble. It was a settlement 

for flooding. OK? 

Ms. HART. OK. 

Mr. YOUNG. So now, you mean to tell me that a tribe can go to 

the Department of the Interior, and you can OK their gambling, 

even if the State objects to it? That was never the intent of IGRA. 

I was there. Kildee was here. But that was never the intent of 

IGRA. It was supposed to be a cooperation. It was done in Michigan, it has been done in California, every one has been signed. So 

you mean to tell me now, the TO gets this land, they could build 

a casino even though the State objects to it? 

Ms. HART. I wouldn’t say the State objected to it, because they 

signed the compact in 2002, which would allow it. 

Mr. YOUNG. So did TO. 

Ms. HART. That is right. 

Mr. YOUNG. Said they would not come out of Tucson. 

Ms. HART. The compact terms itself, which is all that we have 

to look at, and Class III gaming is regulated by the compact. And 

I don’t see anything within the bounds of this agreement that 

would prohibit—and actually what it says is, under 3[j], that the 

tribe can, as long as they comply with the terms of IGRA. 

Mr. YOUNG. But the terms of IGRA says there has to be a compact with the Governor. 

Ms. HART. That is right. 

Mr. YOUNG. Has to be. Now, what I am saying, if they get this 

land and the Governor doesn’t agree, and we have a letter that 

says they oppose it; the Legislature opposes it, and all but one 

member of the delegation oppose it; now, how could they get the 

license to put a casino on there? 

Ms. HART. As I stated, the compact was signed, it had a provision in there that allowed for after acquired land, under 3[j]. 

Mr. YOUNG. No, no, we are not arguing about that. I am suggesting, what role does the Governor and the State Legislature 

have in issuing and allowing gambling on this new land? 

Ms. HART. The compact that they entered—— 

Mr. YOUNG. No, no. What role do they have now? Any role? Or 

is it just going to be your Department? 

Ms. HART. The Department of the Interior is looking at that as 

of right now. Under the Settlement Act, they are reviewing—— 

Mr. YOUNG. The Settlement Act is different than the compact. 

21 

Ms. HART. Right. 

Mr. YOUNG. That is different. That was for flooding. 

Ms. HART. Yes. 

Mr. YOUNG. OK, just put that aside. 

Ms. HART. OK. 

Mr. YOUNG. We are talking about this new land. How can they 

get a license to gamble if the State objects to it, and the legislative 

body objects to it? 

Ms. HART. OK, under the Indian Gaming Regulatory Act. 

Mr. YOUNG. They have to have a compact with the State. 

Ms. HART. That is right. 

Mr. YOUNG. OK. So if the State doesn’t give them a compact, how 

can they have a casino on that new land? 

Ms. HART. They do have a compact, though. 

Mr. MCCLINTOCK. I want to keep drilling down on this point, because I think it is very important. The crux of the argument in 

favor of the bill is that the provisions of the compact signed by the 

tribe limited both the number of machines and proximity to other 

establishments. 

Ms. HART. That is correct. 

Mr. MCCLINTOCK. And that this site violates that compact. But 

what you just said is no, there is an exception within the compact 

itself to a land acquisition of this type. Would you elaborate on 

that, please? 

Ms. HART. Section 3[j] of the compact allows for the tribe to do 

gaming on land acquired after, as long as it complies with the 

Indian Gaming Regulatory Act, Section 2719. And under Section 

2719 there are a number of exceptions. 

One of the exceptions, and the one that applies here, is that if 

the tribe has a land acquisition that was mandated by Congress. 

Mr. MCCLINTOCK. So that is a very clear exception to the restrictions in the compact, that both the State and the tribe signed. 

Ms. HART. Correct. 

Mr. MCCLINTOCK. So the tribe is entirely within its rights, under 

the terms of that contract, because of the nature of the acquisition 

itself. 

Ms. HART. That is correct 

Mr. MCCLINTOCK. Mr. Chair, I have to say, I am rather sympathetic. I had a similar situation in my district. The Enterprise 

Rancheria lost its land to an inundation caused by a dam. They 

have been attempting for some time to acquire replacement property. And the first thing that happens is the tribes with existing 

establishments, in this case I think it was Auburn, ganged up on 

this poor little Rancheria, and tried to shut them down. 

I am very sympathetic to the situation of a tribe that is simply 

trying to replace property that was destroyed by a similar inundation, and facing the same kind of opposition from groups that simply don’t want to compete for people’s business. 

Mr. YOUNG. Well, we have a difference of opinion. When the voters went to the poll and they voted on it, they thought they were 

buying the same car. They didn’t expect to get a Mercedes when 

they actually bid on a Volkswagen. 

Mr. Kildee. No questions. Mr. Denham. See, I go down the line 

according to seniority, but go ahead. 

22 

Mr. DENHAM. Let me first ask, Prop 202, how is that different 

from Prop 1[a] and Prop 5 in California? 

Ms. HART. I am familiar with both of the Propositions, but I am 

not sure what you are—I think, I am not sure. 

Mr. DENHAM. I think they are very similar, and so I am just trying to understand if there are any nuances there, if the people of 

the State of California, for example, pass something that they 

felt—I mean, I remember the ads very, very clearly. We weren’t 

going to have reservation-shopping, we weren’t going to have offres gaming; tribes were not going to continue to leap-frog other 

tribes and move into urban areas. Which is exactly what it looks 

like is happening here. Whether you are talking about California, 

or Arizona, or many other States across the nation. 

So you know, there was a set criteria. I was actually pretty surprised that that new criteria has changed from an administrative 

standpoint, and how that is going to affect tribes across the entire 

nation. 

You know, in the case of California, North Fork does have property. I understand that thee are issues with that property, the 

same way that Enterprise has issues there, as well. But if we continue to allow this leap-frogging from one area to another, I mean 

the ’99 compacts in California allow two casinos. So why wouldn’t 

every tribe that has authorization for two casinos leap-frog the next 

one to another opportunity that is going to be more focused on 

gaming, rather than on tribal sovereignty? 

Ms. HART. Well, the only thing I guess I can add to that is we, 

in the Office of Indian Gaming for the Assistant Secretary, we follow the Indian Gaming Regulatory Act. We interpret it, and we follow the law as it is stated. 

And in Enterprise and North Fork’s case, what just happened is 

that in those cases, it does go to the Governor. But that is different 

from a settlement act. 

Mr. MCCLINTOCK. You are not following the law. You are changing an administrative policy. You have changed what was an administrative policy under George Bush to a new administrative policy under President Obama. 

So I guess my question is, what is the necessity to change that 

policy? 

Ms. HART. There were a number of lawsuits filed under the 

Bush, under the policy that was applied under the Bush Administration. And they were all regarding the way that policy came into 

effect. 

And so we did, once this Administration came in, we did a number of consultations regarding the substance of the policy. And once 

we—— 

Mr. MCCLINTOCK. OK, what are the changes in the substance of 

the policy? 

Ms. HART. What we did is we withdrew the Carl Artman memo, 

which added a commutability policy on how far you could go away 

to do off-reservation gaming. 

Mr. MCCLINTOCK. Why? Why extend the distance from a community? 

Ms. HART. Based on the consultation that we held. 

23 

Mr. MCCLINTOCK. We are still not getting to the bottom of the 

point. We had a set criteria of a certain amount of mileage from 

their ancestral lands. 

Ms. HART. Right. 

Mr. MCCLINTOCK. And now we have extended that to allow a further distance, and closer to an urban area. 

Ms. HART. I am not, I am not sure that that is what we have 

done. 

Mr. MCCLINTOCK. OK, what have we done? 

Ms. HART. What we have done is we have withdrawn the 

commutability, the Carl Artman memo. We have withdrawn that. 

We have looked at, what we have to do, what we are doing now 

is we are looking at each application on a case-by-case basis. 

Mr. MCCLINTOCK. OK. But the administrative policy that has 

been changed here is extending the mileage that you can go, the 

greater distance that you can go away from current tribal lands. 

What is the reason for changing that mileage criteria? 

Ms. HART. I don’t think that that is what it does. I don’t think 

we have extended the mileage that you can go away. 

Mr. MCCLINTOCK. Wasn’t it 30, 50 now and it was 33 before? 

Ms. HART. No, no. That was, there was no—— 

Mr. MCCLINTOCK. It is the Administration’s policy; I would expect you to know. But I will make sure before my next round of 

questioning that I get the answer for you. 

Ms. HART. Well, in the Carl Artman memo, there was a 

commutability distance. And basically it wasn’t a mileage, it was, 

is the distance from your existing reservation to where you want 

to go a commutable distance. So there was no mileage. 

Mr. MCCLINTOCK. And how is commutable defined? 

Ms. HART. What we did is we looked at a number of different 

definitions on that. And so, under the Carl Artman memo—and 

then what the problem was, is under the APA we didn’t do consultation, and that memo was enacted. 

So we came back, we did the consultation, and we said it is a 

case-by-case basis. Still, again, under Carl Artman, there was no 

set number of how far is commutable. Because in each case, like 

in D.C., a commutability distance would be a little bit further out 

than if you go into the middle of Wyoming. So now that is how we 

are looking at it. 

Mr. YOUNG. Thank you, time is up. Mr. Eni. 

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. Ms. Hart, I am 

trying to follow the line of questioning the Chairman is asking, and 

I am just trying to get in my own mind exactly the sequence here. 

Congress passes IGRA in 1988, and allows States to have contract agreements with tribes to establish gaming operations. Arizona is one of those States that has this agreement with, what, 17 

tribes I understand. Tohono, as well as the Gila Bend Tribe, all the 

others are all part of the compact. 

Ms. HART. Right. 

Mr. FALEOMAVAEGA. Apparently one of the tribes has expressed 

concern that the Tohono is not complying with the provisions of 

that contract agreement. And the reason for Congressman Franks’s 

proposed bill is simply to express the will of Congress, and tell the 

24 

Tohono Tribe go back to the agreements that you made with the 

contract. 

Now you are saying the Department of the Interior opposes the 

bill. 

Ms. HART. Right. 

Mr. FALEOMAVAEGA. Can you explain exactly why the Department of the Interior opposes the bill, again? 

Ms. HART. Yes. Because the Department cannot support a unilateral altering of an agreement 25 years after the agreement, when 

the Tohono O’odham and the United States made an agreement 

back then to change the terms of those agreements. 

Mr. FALEOMAVAEGA. Would it be possible for the other tribes to 

take the Tohono Tribe to Court? Simply the fact that there is a contractual relationship with the State, one tribe isn’t complying, so 

could this matter have been taken to the Court? 

Ms. HART. Yes, I believe it is being litigated. 

Mr. FALEOMAVAEGA. Or the other option is to come to the Congress and provide a remedy directly. And you are saying that the 

Department of the Interior does not allow unilateral, what was it 

again? 

Ms. HART. Well, Congress certainly can do whatever they choose. 

The Department’s position is we don’t unilaterally support, we 

don’t support a unilateral change. 

Mr. FALEOMAVAEGA. What would be your recommendation to 

cure the concerns that Congressman Franks has shared with the 

members of the Committee? 

Ms. HART. I believe, based on that, I think the Tohono O’odham 

Tribe should be a part of the agreement. 

Mr. FALEOMAVAEGA. I know, we understand that. They are part 

of the agreement. But again—— 

Ms. HART. Well, clarification, then. 

Mr. FALEOMAVAEGA. Well, not really for—how would you remedy 

the situation where these other tribes have expressed concerns that 

the Tohono Tribe is not acting in compliance with this contract, 

which is authorized by IGRA? 

Ms. HART. The difficulty is, under the terms of the compact, all 

of the tribes have—— 

Mr. FALEOMAVAEGA. Wait, wait, compact. What do you mean, the 

contract? 

Ms. HART. The compact, the Tribal-State Compact, which 17 

tribes signed off on. 

Mr. FALEOMAVAEGA. OK. 

Ms. HART. Under the terms of that compact, all of the tribes 

agreed that as long as a tribe—any of them could do this, any one 

of them could do this—as long as they comply with Section 2719 

of the Indian Gaming Regulatory Act, then they have agreed to, 

they have agreed to this. 

Mr. FALEOMAVAEGA. OK, I am visiting the Tohono Tribe reservation, if you call it. How far is the tribal location from the City of 

Glendale? I know it is closer to Tucson than it is to Phoenix. 

Ms. HART. Right. 

Mr. FALEOMAVAEGA. So how far is it from Glendale? 

Ms. HART. We did do a number of maps on that specific number, 

but we did it from a different, a bunch of different areas. And I 

25 

think it went from 53 miles in certain parts of the reservation, to 

like 117 miles. And then that varies depending on driving distance 

and a straight-line distance. 

Mr. FALEOMAVAEGA. It was part of the prohibitions not to do anything outside 50 miles? Can you elaborate this 50 miles that we 

talked about earlier? Restriction, or was it allowable under the law 

for, for the Tohono Tribe to purchase, was it to purchase the land 

in Glendale to conduct a—— 

Ms. HART. I believe the part, you are talking about on the settlement agreement? 

Mr. FALEOMAVAEGA. I am talking about Glendale. This seems to 

be where the land is in controversy. 

Ms. HART. Right. 

Mr. FALEOMAVAEGA. OK. And the Tohono Tribe wants to purchase, right? To conduct a casino or whatever. 

Ms. HART. Right. 

Mr. FALEOMAVAEGA. How far is that from the Tohono Reservation? 

Ms. HART. Depending on, because of the size of the reservation, 

depending on where you are, it is between 53 and about 117 miles. 

Mr. FALEOMAVAEGA. So it is beyond the 50-mile, if there is a restriction, beyond 50 miles or whatever? 

Ms. HART. It is beyond, yes. 

Mr. FALEOMAVAEGA. It is further than 50 miles then, OK. All 

right, Mr. Chairman, my time is up. Thank you. 

Mr. YOUNG. Before I go to Mr. Gosar, Ms. Hart, we requested, 

you are a career employee, right? 

Ms. HART. That is correct. 

Mr. YOUNG. Yes. So before we are too cruel to her, we requested 

a political appointee to be here, somebody that was a little higher 

ranked. And they put poor Ms. Hart into the briar’s patch, gentlemen, so just keep that in mind. So that as you beat up on her, be 

kind. 

She is doing very well for herself, but I am just saying, I would 

prefer, Mr. McClintock, that we had somebody, when we ask the 

Administration, they send somebody we asked for. And this is one 

of the gripes I have had in this Committee in every Administration. 

They sort of thumb their nose at the Congress, and it just really 

frustrates me. If you guys don’t understand that, you had better 

understand it because we are equal branches of the government. 

When we request somebody come up here, we want them up here. 

But conveniently, they are all out of town today. I would like to 

check their travel schedule and see where they really are. 

[Laughter.] 

Mr. YOUNG. This is not the only Administration I have this complaint about, so just keep it in mind. Because when we do allow 

them to do what they have done to us today from that side of the 

aisle, they are thumbing their nose at us. It is time that stops. 

What is wrong with this nation today? There is no king. If you 

read the Constitution very closely, it is the Congress that is to lead 

this nation, and the Congress is to make the laws of the nation, 

not the President and his Executive Order. We should be ashamed 

allowing this to happen. 

Mr. Gosar, if you are ready. 

26 

Dr. GOSAR. And I am sorry that you have to answer this, but you 

work for the government, and therefore, there comes the work. So 

is the Department unified on this decision? Is your Department 

unified in this decision, that you have come forward that you are 

against this bill? 

Ms. HART. Yes, the Department has approved the statement that 

I have made today, yes. 

Dr. GOSAR. OK. So now let me ask you a question. What took you 

so long for the deliberation in this process? Because there is something wrong here, there is something very wrong here. 

In our world, if this was Wall Street, this is called insider trading, OK? 

Ms. HART. Yes. 

Dr. GOSAR. That is wrong. And you know this is wrong. Because 

what has happened is, everybody is sitting at the table playing 

cards, but we have a hidden card here. And we knew all along. We 

should have been telling the Tohono O’odham this was wrong, and 

that it violated the whole precedence of this decision. 

Because what you did is you put the, subjugated the whole State 

of Arizona, every part of the compact, to this breach. Because they 

knew something about an insider-trading issue. That is where you 

should have gone, this is where you went wrong, is that you should 

have adjudicated something saying you are wrong here. Because 

you could have used this for any other thing here, but you had insider trading. You should have come forward within this compact, 

but you knew in the context of this legal agreement, this binding 

agreement, that you put, that we put, Congress put all parties at 

the table. 

They didn’t just put the Tohono O’odhams; they put all the tribes 

there. 

Ms. HART. Right. 

Dr. GOSAR. They put the State there. And they not only said, not 

allowed it, but demanded a compact. Did they not? 

Ms. HART. I believe so. 

Dr. GOSAR. So if it was insider trading, why haven’t you said this 

is wrong? 

Ms. HART. This issue is being litigated. 

Dr. GOSAR. OK, then let us step back again. Thee are a number 

of ways. I mean, a lot of times the quandary for litigation has to 

do because of the jurisdiction of the tribes. It rests with Congress, 

and Congress only, does it not? 

Ms. HART. Yes. 

Dr. GOSAR. Wouldn’t it be interesting to acknowledge that there 

was a de facto problem here? I know we spent years and years and 

years going over criminal jurisdictions within tribal aspects versus 

our normal code. They are similar, but they are not perfect. 

Now, we are going into an area that has vastly never been explored, is that true? 

Ms. HART. Yes. 

Dr. GOSAR. Wouldn’t it be interesting to have the dialogue saying 

we have a problem here, but actually acknowledging that the problem is here? Because we have had a problem here. What is wrong 

is wrong, and this is wrong. And then you can work out the rest. 

27 

But to have insider trading, having insider information, is desperately wrong. I don’t care if you cut it thin, it is still ham. And 

I find this, I find this very repugnant, that we are even having this 

discussion based on the individuality breakup of tribes. On a compact and an agreement. This makes everybody look horribly wrong, 

horribly bad. And it is for greed. It is for greed. 

Because I look at all the tribes, and I serve a lot of the tribes. 

And what is going to happen if this goes forward, there is no agreement that is sacred any more. Nothing. And that is where you 

should be principally held upon, is the rule of law. And I have a 

lot of disdain for what is going on right here. This is horrible. 

And that is why I asked you the question, that there is more to 

this. And I would have hoped that everybody in this Department 

would have well taken this into consideration, that this law was a 

quandary that was put in, in this exception. With insider trading, 

that supersedes the wrong on anything else here. And then we can 

reevaluate the law. I think that is what is horrible here. 

So I am sorry to say that I, at least, can see wrong, right from 

wrong. And I know that there are 16 other tribes in this same 

quandary in Arizona. I also know the State is doing the same 

thing. Because we shouldn’t be in the aspect of making laws from 

an administrative capacity. It should come from Congress. It 

should go through the right process. 

So with that, I am going to say pass it up the buck. 

Mr. .GRIJALVA Thank you, Mr. Chairman. 

Mr. YOUNG. You are ready. 

Mr. GRIJALVA. No similarity, but just to point out, I think the 

Chairman made an excellent point about the will of Congress and 

the role of Congress. And legislation to acquire trust land that I 

proposed for the Cocopah in the Yuma area, there is a prohibition 

against gaming if that land were to be acquired. That prohibition 

was part of the legislative process, part of the will of Congress to 

include that, and with the consent of the Cocopah Nation. 

The return of lands that were taken from the Colorado River 

tribes is something we were successful in returning to that, to that 

Nation years ago. Again, the prohibition existed. I didn’t like the 

prohibition, but that was the way the legislation was going to 

move, and we got the consent of the Colorado River tribe to allow 

that provision of no gaming on their newly acquired land. 

Let me ask Ms. Hart, has the other Nations legal, you know, 

what they are doing now, in going through asking both the Department of the Interior and the National Gaming Commission for a 

determination on whether that West Valley land is eligible for 

gaming? Is that appropriate and legal, and is it legal under the 

compact? 

Ms. HART. That is part of the process for doing gaming on the 

land, yes. 

Mr. GRIJALVA. And I understand that we are dealing with issues 

of location, issues of, all the issues that have been allowed here. 

But I want to reiterate, and enter it into the record, that under the 

compact itself, the exceptions explicitly listed there for settlement 

land is there. And I am assuming that is why the Nation is going 

through the process to validate and verify and legally get the reading on that exception. 

28 

Ms. HART. That is correct. 

Mr. GRIJALVA. Let us walk back in history before we jump too 

far ahead. In 1986, did gaming exist when the Settlement Act was 

passed? 

Ms. HART. Gaming did exist, yes. 

Mr. GRIJALVA. OK. And was there a prohibition on gaming on 

newly acquired trust lands in 1986? 

Ms. HART. Not that I am aware of. 

Mr. GRIJALVA. And Congress was considering legislation to regulate Indian gaming generally, and to prohibit gaming on newly acquired lands, prior to and during 1986? 

Ms. HART. The hearings on gaming started in 1984. 

Mr. GRIJALVA. So Congress, in their Settlement Act, if they wanted to prevent the Nation from gaming on land it acquired under 

that Settlement Act, wouldn’t they have, wouldn’t now-Senator 

McCain and then-Senator DeConcini explicitly say so in that piece 

of legislation? 

Ms. HART. Yes, they could have done that. 

Mr. GRIJALVA. And both of them were working on the IGRA legislation at that same time. And so the settlement occurred almost 

at that period of time, and before—and I hope I have my dates 

right, because thee are about 28 lawyers in the audience, and I am 

sure they are checking that right now. 

The other proposition that I feel is important to ask you about. 

Do you feel, I think it was asked, as a general proposition that 

Congress, after the fact, should feel free to unilaterally amend an 

Indian land or a water rights settlement without the consent of the 

tribe? And this process allows consent to be the issue, which that 

settlement was originally negotiated on. Whether it is water, 

whether it is this settlement issue that we are talking about. And 

settlement questions that abound all across this country. I think 

that is the precedent that I want to ask about. 

Ms. HART. Yes. The Department cannot support the unilateral altering of agreements such as that. 

Mr. GRIJALVA. There is—no, that should do it. Thank you, Mr. 

Chairman. 

Mr. YOUNG. I thank the gentleman and his passion for his position on this. My concern is when Moe Udall and I, and Moe Udall 

was sitting right here, and I was sitting right there. And we definitely always made the agreement in IGRA that there would have 

to be an agreement from the Governor and a legislative body. Otherwise there would be no gambling. And that is my biggest concern 

with this whole thing. 

I got a letter from a Governor, I got a letter from everybody, and 

we thought this was a way to make everybody work together. And 

basically it worked all this time. This is the first time, I think, 

since IGRA where we have had a leap-frogging aspect. And I go 

back to the deal about Tucson; I am all for it, a casino in Tucson. 

I think it is going to be a good idea. 

But that bothers me when we are now, the Department is saying 

we don’t need to have that compact doesn’t mean anything, and the 

State doesn’t play a role in it, I think there is something wrong. 

Because that was never our intent. And I challenge anybody to dispute me. Go back and look up the report and the language we had 

29 

when we passed IGRA. By the way, we were criticized for it at that 

time, too. 

But anyway, let me see, who is up next? Mr. Schweikert. 

Mr. SCHWEIKERT. Thank you, Mr. Chairman. I was teasing Mr. 

Franks because he is now the Ranking Member of our delegation. 

Is it Ms. Hart? 

Ms. HART. Yes. 

Mr. SCHWEIKERT. Ms. Hart, how long have you been in this area 

of specialization? 

Ms. HART. Almost 20 years. 

Mr. SCHWEIKERT. Twenty years. Have you ever wanted to just go 

beat up your career counselor? 

[Laughter.] 

Mr. SCHWEIKERT. Oh, come on, that was funny. 

[Laughter.] 

Mr. SCHWEIKERT. Do you remember, were you covering Arizona 

at the time, we will call it the original compacts, 1993? Yes, I think 

that was when we did the first set. 

Ms. HART. That is right. Yes, yes, I would have been. 

Mr. SCHWEIKERT. And this is partially also for the members of 

the Committee. Then I believe actually sort of the update of that 

was, what, 2002? 

Ms. HART. Yes. 

Mr. SCHWEIKERT. And that was actually done through an initiative process, I believe. 

Ms. HART. That is correct. 

Mr. SCHWEIKERT. The gambling tribes, if that is the proper way 

to phrase it, got together and actually put something on the ballot. 

And if I also remember at that time there was also a competing 

initiative, and this is me reaching my brain back a little bit, for 

some of the horse-racing they had also wanted. You know, racinos. 

And the public voted that one down. 

Ms. HART. Yes. 

Mr. SCHWEIKERT. Is my memory serving me OK? 

Ms. HART. That seems correct, yes. 

Mr. SCHWEIKERT. Did you pay attention to sort of that language 

that was part of that initiative in 2002? 

Ms. HART. Well, when the Tribal-State Compact comes into the 

Gaming Office, we are bound to look at what is in front of us. Any 

agreements—the Indian Gaming Regulatory Act clearly states that 

Class III gaming is regulated by a Tribal-State Compact. So that 

agreement that is in front of us is what we review. 

Thee are very limited circumstances in which we can disapprove 

a compact. So we look at the terms of the compact that is in front 

of us. 

Mr. SCHWEIKERT. OK. You have actually just hit a very interesting point, and I want to make sure. So in many ways you are 

sort of an overseer, but ultimately this really is an agreement between the State and the tribal communities. 

Ms. HART. That is correct. 

Mr. SCHWEIKERT. I mean, that is who is actually making this 

deal. You are sort of the, you know, the sort of stamp of approval 

on top of that. 

Ms. HART. Yes, to make sure it is legal. 

30 

Mr. SCHWEIKERT. Because my memory of that initiative in 2002, 

which the public all over the State voted for, and actually voted for 

overwhelmingly, was that—and literally, I can actually picture 

these gigantic brochures. They must have spent a fortune with 

their printers. Talking about there would be seven casinos within 

the, you know, around the Maricopa County urban area. But with 

it also that there would be a transfer of rights to certain gaming 

machines from rural tribes that did not have urban populations 

transferred over to those. Does that seem familiar? 

Ms. HART. Yes. 

Mr. SCHWEIKERT. Doesn’t this cause some mechanical issues, if 

that is the agreement between the State and the gaming tribes? 

That A, we told the public seven, and this I think would blow that 

number up. But you also, what would happen to these contracts between the tribes and the State if that racino, you know, if the dog 

track or horse track had gone through? You know, if all of a sudden 

I woke up tomorrow and there was Class III gaming at the local 

horse-racing track. 

Ms. HART. The exclusivity provisions in the compact would be 

violated. 

Mr. SCHWEIKERT. And with the violation of that, then boom, 

functionally the tribal communities would have the choice just to 

put in whatever they chose. I mean, race books, anything, because 

at that point we have blown up the Class III restrictions? 

Ms. HART. Well, it would have to be legal in the State. 

Mr. SCHWEIKERT. OK. But isn’t the definition of legal in the 

State that a class of gaming, not actually the individual activity, 

but it is a class definition. This is something that used to drive me 

nuts getting my head around, that a lottery, a State lottery is, 

what, a Class II? 

Ms. HART. Yes. 

Mr. SCHWEIKERT. And yet, now slot machines, are they Class II 

or Class III? 

Ms. HART. Class III. 

Mr. SCHWEIKERT. Class III. So if I had slot machines at a horse 

track, then I can have all types of Class III. I mean, it would blow 

up in everything within Class III. Is there anything above Class 

III? 

Ms. HART. No. 

Mr. SCHWEIKERT. OK, so it is everything. 

Ms. HART. Right. 

Mr. SCHWEIKERT. And that sort of makes that circle back around, 

that the public, statewide, had a vote. We were promised seven in 

the urban area; this blows that up. And my great fear back again 

comes, that if this does blow up and we end up having that initiative back on the ballot again, where, for money for the State budget 

or whatever the excuse is, they try to put, you know the cascade. 

It blows it all up. 

Thank you, Mr. Chairman, for tolerating me. 

Mr. YOUNG. Do you have a question, Mr. Franks? We want to 

thank the witness. And remember to go down and tell your bosses 

don’t do that to me again. And I am going to have them in front 

of me if I have to subpoena them, that is what I am going to do. 

It is not fair to you, Ms. Hart, believe me. 

31 

Ms. HART. Thank you. 

Mr. YOUNG. We will call the next panel: the Hon. Diane Enos, 

Salt River Pima-Maricopa Indian Community; the Hon. Arlen 

Quetawki, Governor of the Pueblo of Zuni; the Hon. Ned Norris, 

Chairman of the TO Nation; Mr. Eric Bistrow, Chief Deputy, Office 

of the Arizona Attorney General; and the Hon. Robert Barrett, 

Mayor of the City of Peoria, Arizona. Please take your seats. 

Diane, honorable President, you are up first. Make sure your 

microphone is on, and take your time. And I think you all know 

the rules: five minutes, and I will maybe be a little lax, but not too 

lax. 

Oh, I have to say happy birthday, too. I probably should sing you 

happy birthday, but someone might say I was prejudiced that way, 

so I better not. So happy birthday. 

STATEMENT OF THE HONORABLE DIANE ENOS, PRESIDENT, 

SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY 

Ms. ENOS. Thank you. I am trying to get comfortable here. 

Thank you, Chairman. I would ask that my written testimony be 

included as part of the record in these proceedings. 

Today I am joined by two members of our community council: 

Councilwoman Diana Chavez and Councilman Tom Largo. In addition I would like to also recognize Chairwoman Louise Benson of 

the Hualapai Tribe in northern Arizona, Councilman Irwin Twist 

of the Cocopah Tribe in southwestern Arizona, Councilman Paul 

Russell with the Fort McDowell Yavapai Nation, Councilman Barney Enos of the Gila River Indian Community. 

These tribal leaders have traveled long distances from the corners of Arizona to show support for the legislation which will prevent a serious injustice to their communities and the voters of Arizona. A dozen tribes formally oppose these ill-advised efforts by the 

Tohono O’odham Nation. Not one Arizona tribe has voiced support 

for Tohono’s efforts to establish an off-reservation casino in the aboriginal territory of my community. 

First, aboriginal territory. Tohono’s reservation, the second-largest tribal homeland in the United States, is in southern Arizona 

along the border. I included in my written testimony a map that 

shows the aboriginal tribal areas in Arizona, as recognized by the 

Indian Claims Commission. 

As the map shows, the City of Glendale, where Tohono is seeking 

to develop their casino, is clearly in the aboriginal lands of the 

Pima-Maricopa, my community, not the Papago who comprise 

Tohono. 

Second, broken promises are key. Our current Arizona Gaming 

Compact is the result of a united effort by tribes in the 1999 to 

2002 period to negotiate with the State to revise and extend the 

prior compacts. I had the privilege of being an elected tribal leader 

then, as well, and Salt River was involved in the entire process. 

My views today are based on my personal experience and discussions with other tribes who were also involved during the compact 

negotiations, and the subsequent initiative process that was required to approve the compact. We all agree on the following key 

points. 

32 

Number one. All of the 17 tribes negotiating with the State, including Tohono, bound ourselves together by written agreement to 

support each other and the positions taken as a unified group. We 

promised each other that if we could not support the common positions taken by the group, or acted inconsistently with those common positions, we would inform the others, so that they could take 

actions accordingly. 

Number two. We all agreed, in response to an initial demand 

from the State, that there would be a reduction in the total number 

of casinos in the Phoenix metro area from 11 to seven; and that 

there would be no new casinos in that area. This was a deal-breaker for the State from the very beginning of negotiations. 

We, along with Tohono, then made the same promise to the voters of Arizona in written materials that I have included as part of 

my written testimony. What is up there is the agreement in principle that was signed by all of the tribes, including Tohono. 

The promise that we made to the voters of Arizona and written 

materials I have also included as part of my written testimony. 

Tohono was a major contributor to that campaign, and was involved in its direction and execution throughout. That is my recollection and that of other tribal leaders with whom I have spoken, 

some of whom are here with me today. 

I need to be crystal-clear on this one point. We believed then, and 

we believe now, that we had a clear agreement with Tohono that 

there would be no new casinos in Phoenix. Whatever else you take 

away from my testimony today, I hope that you understand how we 

view that very fundamental question. 

Now, I have heard the current Chairman of Tohono say in response that the words of the voter materials and of the Governor 

and our own are just that, words. He points to the papers and says, 

where in this document have we made that promise, or, where has 

Tohono signed an agreement, a document that says that. This saddens and disturbs us, but it is also what motivates us to be here 

today. Because in our tribal cultures, one’s word ought to be 

enough. Tribes should not have to worry about whether we can 

trust the word of another tribal government. Yet that is what we 

have today. 

Tohono is now seeking to use a 1986 Federal law to bypass the 

promise it has made to Arizona voters and tribes. Tohono is manipulating the 1986 law to avoid the prohibition against off-reservation gaming, to develop a casino in Glendale, in direct violation of 

the promise that there would be no new casinos in the Phoenix 

metropolitan area. This is wrong, unfair, and Congress should stop 

it. 

The Gila Bend Act of 1986 was an honorable effort by Congress 

to provide compensation and replacement lands to the people of the 

San Lucy District of the Tohono O’odham Nation. But it was not 

a promise that Tohono could operate casinos on that land, nor 

could it have been, as it was passed well before the Indian Gaming 

Regulatory Act of 1988. 

The fact that they are here today arguing for the right to build 

a casino in Phoenix, in direct violation of their word to us and all 

the other affected tribes in Arizona, and the voters in Arizona, is 

33 

1The map attached as Exhibit 1 clearly demonstrates that the lands in Glendale are the aboriginal lands of the Pima Maricopa people, not the Papago (who are now represented by the 

Nation). 2The Tohono O’odham Nation was a major contributor to the entire referendum process, contributing over $1.8 million, and participating in the direction and implementation of the campaign throughout. One particularly telling example of the promise that they were endorsing in 

Continued 

perhaps the most compelling reason I can offer as to why this legislation is absolutely necessary. 

Thank you for the opportunity to testify. I will be happy to answer any questions the panel may have. 

[The prepared statement of Ms. Enos follows:] 

Statement of Diane Enos, President, 

Salt River Pima-Maricopa Indian Community 

Executive Summary 

The Salt River Pima Maricopa Indian Community (‘‘Community’’) would like to 

thank Rep. Trent Franks (R–2nd/AZ) along with Reps. Paul Gosar (R–1st/AZ), Ben 

Quayle (R–3rd/AZ), David Schweikert (R–5th/AZ), and Jeff Flake (R–6th/AZ) for 

sponsoring this important legislation, H.R. 2938, the ‘‘Gila Bend Indian Reservation 

Land Replacement Clarification Act.’’ We also want to thank Representative Dale 

Kildee, long a champion of tribal rights, for his co-sponsorship of this bill. 

This bill will prevent gaming on lands acquired by the Tohono O’odham Nation 

(‘‘Nation’’) in Arizona pursuant to the Gila Bend Indian Reservation Lands Replacement Act in 1986 (P.L. 99–503, 100 Stat. 1798) (‘‘Gila Bend Act’’) and protect the 

current Indian gaming structure in Arizona. 

H.R. 2938 is necessitated by the Nation’s efforts to manipulate the Gila Bend Act 

in a manner that would directly violate their commitments made in the current Arizona compacts. The Nation is currently trying to utilize the 1986 Gila Bend Act to 

acquire lands more than 100 miles from its existing reservation, in our tribe’s aboriginal lands,1 to develop a casino in the Phoenix metropolitan area. 

Congress passed the Gila Bend Act in 1986. The purpose of this law was to allow 

the Nation to replace up to 9,880 acres of primarily agricultural lands that were 

being intermittently flooded due to Federal dam projects. These lands were located 

in southern Arizona near the existing reservation of the Nation. The law provided 

$30 million to the Nation to purchase replacement lands. 

While there is no mention of gaming in this law, two years later Congress passed 

the Indian Gaming Regulatory Act (25 U.S.C. 2701, et seq.) (‘‘IGRA’’), which specifically restricted the ability of Indian tribes to conduct gaming activities on lands acquired after October 1988, except in certain very narrow circumstances. 

The Nation is now asking that the Secretary of the Interior take a fifty-three acre 

portion of this land near Glendale, Arizona into trust status for the purpose of developing a Las Vegas-style casino on it. The Nation argues that the Gila Bend Act 

mandates the Secretary to do so, and to do so without any consultation with the 

local communities, the State, or other American Indian tribes in Arizona despite the 

prohibitions in IGRA and the promises made by the Nation during the Compact negotiations and the Prop 202 process. 

While the Secretary of the Interior has not yet opined on whether these lands 

would be eligible for gaming, he has issued a decision to take the lands into trust 

status. A federal district court has issued an injunction prohibiting the Secretary 

from doing so until the appeals from that decision have run. The Gila Bend Act was 

passed before IGRA and was not intended to allow for gaming on these lands. Congressman Franks’ bill would clarify Congress’ intent. 

In addition to seeking to sidestep the limits of the Indian Gaming Regulatory Act, 

the efforts of the Nation also jeopardize a well-balanced system of gaming in Arizona, that the Nation helped to construct. The State of Arizona is unique in that 

it has a system of gaming that was jointly negotiated amongst the tribes and the 

State, and then approved by the citizens of Arizona in a state-wide referendum. The 

Arizona system prohibits any additional casinos in the Phoenix metropolitan area, 

but allows the Nation to develop a fourth casino (the Nation currently operates 

three successful casinos) in the Tucson metropolitan area, where the Nation has historically been located. 

The Nation financially and publicly supported the development of the current 

gaming system in Arizona.2 However, unbeknownst to the other tribes, the State 

34 

the campaign materials for the Compact is attached as Exhibit 2. In it, on page 5, appears the 

following text: 

‘‘Q. DOES PROP 202 LIMIT THE NUMBER OF TRIBAL CASINOS IN ARIZONA? ‘‘A. YES, 

IN FACT, PROP 202 REDUCES THE NUMBER OF AUTHORIZED GAMING FACILITIES ON 

TRIBAL LAND, AND LIMITS THE NUMBER AND PROXIMITY OF FACILITIES EACH 

TRIBE MAY OPERATE. UNDER PROP 202, THERE WILL BE NO NEW ADDITIONAL FACILITIES AUTHORIZED IN PHOENIX, AND ONLY ONE ADDITIONAL FACILITY PERMITTED IN TUCSON.’’ 3See e.g., the Rhode Island Indian Claims Settlement Act, settling the Narrangansett’s land 

claims, was enacted in 1978 without a provision regarding gaming. 25 U.S.C. § 1701 et seq. Congress subsequently amended the Rhode Island Indian Claims Settlement in 1996 to explicitly 

prohibit gaming pursuant to IGRA. See 25 U.S.C. § 1708(b) (‘‘For purposes of the Indian Gaming 

Regulatory Act (25 U.S.C. 2701 et seq.), settlement lands shall not be treated as Indian lands’’). 

See also, the Colorado River Indian Reservation Boundary Correction Act, to clarify or rectify 

the boundary of the Tribe’s reservation while also including a provision prohibiting gaming 

(‘‘Land taken into trust under this Act shall neither be considered to have been taken into trust 

for gaming nor be used for gaming (as that term is used in the Indian Gaming Regulatory Act 

(25 U.S.C. 2701 et seq.)’’), Pub. L. 109–47 (Aug. 2, 2005); Congress passed legislation to waive 

application of the Indian Self-Determination and Education Assistance Act to a parcel of land 

that had been deeded to the Siletz Tribe and Grand Ronde Tribe in 2002 but also included a 

gaming prohibition provision (‘‘Class II gaming and class III gaming under the Indian Gaming 

Regulatory Act (25 U.S.C. 2701 et seq.) shall not be conducted on the parcel described in subsection (a)’’) Pub. L. 110–78 (Aug. 13, 2007); Congress clarified the Mashantucket Pequot Settlement Fund, 25 U.S.C. § 1757a to provide for 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 (including the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq) and any regulations promulgated by the Secretary of the Interior or the National Indian Gaming Commission 

pursuant to that Act) on any land that is leased with an option to renew the lease in accordance 

with this section.’’), Pub. L. 110–228 (May 8, 2008); Congress passed the Indian Pueblo Cultural 

Center Clarification Act which amended Public Law 95–232 to repeal the restriction on treating 

certain lands held in trust for the Indian Pueblos as Indian Country with the explicit clarification that although it was Indian Country it could not be used for gaming (‘‘Gaming, as defined 

and regulated by the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.), shall be prohibited 

on land held in trust pursuant to subsection (b).’’) Pub. L. 111–354 (Jan. 4, 2011). 

and the voters of Arizona, at the same time that it was advertising to the voters 

and other tribes that there would be no new casinos in the Phoenix area, the Nation 

was entering into a confidential agreement with a realtor to buy land in the Phoenix 

area for a casino. 

Twelve American Indian tribes in Arizona oppose the efforts of the Nation to develop a casino in the Phoenix metropolitan area; as does the Governor of Arizona 

and the Cities of Glendale, Phoenix, Scottsdale and others, and no other Arizona 

Indian tribe has indicated support of the casino development. 

Congress did not intend this type of situation to occur when it passed the Gila 

Bend Act. H.R. 2938 would bring some common sense to this situation and clarify 

that lands purchases through the Gila Bend Act cannot be used for gaming, confirming the promises made by the Nation in 2002 to the tribes, to the State and 

the voters of Arizona. H.R. 2938 will not make any amendments to the Indian Gaming Regulatory Act. The bill would not take any lands away from the Nation, nor 

will it prevent any lands from going into trust status. The bill will only prohibit the 

Nation from conducting gaming on lands acquired pursuant to the Gila Bend Indian 

Reservation Lands Replacement Act of 1986 which is critical in order to be able to 

protect the entire Arizona Indian gaming structure. 

I. H.R. 2938 

As its title makes clear H.R. 2938 clarifies the Gila Bend Act to expressly prohibit 

Class II or Class III gaming, as defined in IGRA, on lands placed into trust pursuant to the Gila Bend Act. H.R. 2938 is a simple one sentence amendment that clarifies that the Gila Bend Act was not intended to authorize gaming on newly acquired 

lands. 

H.R. 2938 does not jeopardize tribal sovereignty nor create negative precedent for 

Indian Country. H.R. 2938 simply seeks to clarify that Las Vegas-style gaming is 

not permitted on land acquired pursuant to the Gila Bend Act. In fact, this type 

of legislative restriction is common in Indian Country. Congress has included various restrictions in legislation involving Indian land, particularly gaming. For instance, it is not unusual for Congress to revisit existing statutes to clarify that gaming is prohibited, so long as the legislation is narrowly tailored. 3 Similarly, legislative bills consistently grant federal recognition to tribes or grant land-into-trust staVerDate Nov 24 2008 16:43 Oct 04, 2012 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6621 L:\DOCS\70596.TXT Hresour1 PsN: KATHY
35 

4See e.g., Hoh Indian Tribe Safe Homelands Act, Pub.L. 111–323 (Dec. 22, 2011), 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 (including 

the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) (including any regulations promulgated by the Secretary of the National Indian Gaming Commission pursuant to that Act)); the 

Omnibus Public Land Management Act of 2009 included a land transfer to the Washoe Tribe 

but restricted the use of land for gaming: ‘‘Land taken into trust under paragraph (1) shall not 

be eligible, or considered to have been taken into trust, for class II gaming or class III gaming 

(as those terms are defined in section 4 of the Indian Gaming Regulatory Act (25 U.S.C. 2703)) 

Pub. L. 111–11, 123 Stat. 1115 (Mar. 30, 2009); Pechanga Band of Luiseno Mission Indians 

Land Transfer Act of 2007, Pub. L. 110–383 (Oct. 10, 2008) transferred federal land in trust 

to the Pechanga Reservation but prohibited gaming such that ‘‘[t]he Pechanga Band of Luiseno 

Mission Indians may not conduct, on any land acquired by the Pechanga Band of Luiseno Mission Indians pursuant to this Act, gaming activities or activities conducted in conjunction with 

the operation of a casino—(A) as a matter of claimed inherent authority; or (B) under any Federal law (including the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) (including any 

regulations promulgated by the Secretary or the National Indian Gaming Commission under 

that Act))’’; Albuquerque Indian School Act, Pub.L. 110–453 (Dec. 2, 2008) that authorized the 

Department of Interior to take land into trust for the benefit of nineteen (19) pueblos and included a prohibition on gaming: ‘‘No gaming activity (within the meaning of the Indian Gaming 

Regulatory Act (25 U.S.C. 2701 et seq.)) shall be carried out on land taken into trust under section 103(a)’’; Congress passed a bill to provide for lands to be held in trust for the Utu Utu 

Gwaitu Paiute Tribe and included a gaming restriction: ‘‘Lands taken into trust pursuant to 

subsection (a) shall not be considered to have been taken into trust for, and shall not be eligible 

for, class II gaming or class III gaming (as those terms are used in the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.))’’, Pub. L. 109–421 (Dec. 20, 2006). 5Many tribes across the Nation, including various Missouri River valley tribes impacted by 

the Pick-Sloan project, and even the Seneca Nation of Indians in New York impacted by the 

Kinzua Dam have been the subject of such proceedings. 

tus with an explicit provision prohibiting gaming pursuant to IGRA. 4 This is a 

proper and necessary role for Congress. 

This continues to be a consistent practice of Congress. Recently, Congressman 

Grijalva introduced the Cocopah Lands Act (H.R. 1991), a bill to transfer land in 

trust to the Cocopah Tribe and included a provision restricting gaming. (‘‘Land 

taken intro trust for the benefit of the Tribe under this Act shall not be used for 

gaming under the Indian Gaming Regulatory Act’’). See Exhibit 3. 

The Community supports H.R. 2938 because it is narrow in scope, does not impact tribal sovereignty and is the simplest solution to this current threat to Indian 

gaming in Arizona. Instead, this legislation merely makes express what had been 

the common understanding of the rights and remedies available under the Gila 

Bend Act. 

II. The Gila Bend Act Did Not Create a Right to Conduct Gaming 

In 1950, Congress enacted the Flood Control Act, Pub. L. No. 81–516, 64 Stat. 

163, authorizing the construction of the Painted Rock Dam in central Arizona. The 

Painted Rock Dam was built ten miles downstream from the Nation’s Gila Bend 

Reservation, which was held in trust by the United States for the benefit of the Nation. H.R. Rep. No. 99 851 at 4 (1986). Before completion of the dam, the Army 

Corps of Engineers (the ‘‘Corps’’) repeatedly attempted to obtain a flowage easement 

over the lands (both Indian trust lands and non-Indian fee lands) that would be 

intermittently flooded as a result of the dam’s construction. Id. at 5. Because the 

Corps could not reach an agreement with the Nation or other non-Indian landowners, it eventually instituted condemnation proceedings in federal district court. 

Id. Through those proceedings, the Corps obtained a condemnation of fee title for 

the non-Indian lands and a flowage easement for the affected Indian and non-Indian 

lands pursuant to a 1964 federal court decree.5 Id. 

The flowage easement for Painted Rock Dam did not ‘‘take’’ the Gila Bend Reservation from the Nation but rather authorized intermittent flooding of approximately 7,700 acres of the Nation’s Gila Bend Reservation, for which the Corps paid 

$130,000 in compensation to the Nation. Id. In the late 1970s and early 1980s, high 

rainfall caused repeated flooding upstream of Painted Rock Dam, ‘‘each time resulting in a large standing body of water.’’ Id. ‘‘[T]he floodwaters destroyed a 750-acre 

farm that had been developed at tribal expense and precluded any economic use of 

reservation lands.’’ Id. at 5–6. In 1981, the Nation petitioned Congress ‘‘for a new 

reservation on lands in the public domain which would be suitable for agriculture.’’ 

Id. at 6. 

We understand the inexcusable damage done to the cemetery and the houses in 

the San Lucy village and we believe that Congress rightfully enacted the Gila Bend 

Act in 1986 to address the unexpected flooding and its effects. To be certain, howVerDate Nov 24 2008 16:43 Oct 04, 2012 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 L:\DOCS\70596.TXT Hresour1 PsN: KATHY
36 

ever, the Gila Bend Reservation was not inundated or otherwise rendered inhabitable. The most predominant effect was the wide spread growth of tamarisks (salt 

cedars) on the Nation’s reservation lands, which are an invasive species that is difficult to destroy and makes agricultural development extremely difficult. 

Thus, the Gila Bend Act gave the Nation the means to replace 9,880 acres with 

9,880 acres of other land. It provided that if the Nation assigned the entire reservation to the United States, it would receive in return funds to be used for the purchase of replacement land and for other related purposes. Specifically, Section 4(a) 

authorized payment of $30 million to the Nation, plus interest from the date of enactment, if it agreed to assign ‘‘to the United States all right, title, and interest of 

the Tribe in nine thousand eight hundred and eighty acres of land within the Gila 

Bend Indian Reservation.’’ 

In other words, the Gila Bend Act authorized an acre for acre exchange of land 

funded by the federal government in order to put the Nation back into the position 

it was before Painted Rock Dam was constructed—in possession of land suitable for 

agricultural development. Thus, the Nation made such an assignment shortly after 

enactment and received the statutory funds in return. 

The Nation seeks to justify the operation of gaming in the Phoenix metro area 

on the ground that the Gila Bend Act qualifies as a ‘‘settlement of a land claim’’ 

within the meaning of IGRA. But a ‘‘land claim’’ is a claim to land, rather than a 

claim for damage to land. To read ‘‘land claim’’ to mean a claim to title or possession 

is faithful to historical congressional and judicial usage, to the statutory text of 

IGRA, and to IGRA’s implementing regulations. In contrast, to read ‘‘land claim’’ as 

the Nation suggests defies the statutory text of IGRA. 

The regulations define a ‘‘land claim’’ as one that (i) arises under the U.S. Constitution, federal common law, federal statute or treaty; (ii) accrued on or before October 17, 1988 and (iii) involves ‘‘any claim by a tribe concerning the impairment 

of title or other real property interest or loss of possession.’’ The regulations make 

clear that the term ‘‘land claim’’ for purposes of Section 20 relates to claims concerning the title of the land or loss of possession. The term ‘‘land claim’’ does not 

encompass all claims relating to land, such as ones for injury to the land. 

A ‘‘land claim’’ as that term has been used by Congress for over a hundred years 

is a claim to land—a claim to title. Every occurrence of the term ‘‘land claim’’ located in federal statutes confirms this interpretation. The prototypical Indian land 

claims when Congress enacted IGRA were claims such as those made by Eastern 

tribes pursuant to the Indian Nonintercourse Act. See, title 25, Chapter 19, United 

States Code. In each instance, a state or other non-Indian entity acquired title and 

possession of the Indian land in contravention of federal law. 

As a result, the Indian tribes brought actions for the immediate possession of the 

land and ejectment of the non-Indian occupants based upon the tribe’s superior title 

to the land as recognized and guaranteed by federal law. Thus, the hallmark of an 

Indian land claim is one in which an Indian tribe claims a right to a parcel of land, 

either by title or possession, against an adverse claim of title. This Congress has 

enacted at least thirteen (13) ‘‘land claim’’ settlements, each of which arose out of 

claims filed or asserted by Indian tribes alleging the illegal dispossession of their 

land and a possessory interest based upon superior title. See 25 U.S.C. Chapter 19, 

§§ 1701–1778h. 

The Gila Bend Act did not settle any ‘‘land claim’’ and mentions no such claim. 

Rather, it settled ‘‘any and all claims of water rights or injuries to land or water 

rights (including rights to both surface and ground water).’’ Gila Bend Indian Reservation Lands Replacement Act, Pub. L. No. 99–503, 100 Stat. 1798, 9(a) (1996). 

The Nation has proffered a number of self-serving assertions of viable ‘‘land claims’’ 

allegedly settled by the Gila Bend Act, none of which hold up when analyzed under 

well settled law. 

III. H.R. 2938 Recognizes and Supports Tribal Sovereignty 

The Community, along with the 12 other tribes in support of H.R. 2938, know 

firsthand the importance of tribal sovereignty. As federally recognized tribes, we 

fight on a daily basis to protect tribal sovereignty and provide for our people. We 

would not support a bill that jeopardizes tribal sovereignty. Rather, we pride ourselves on working with our brethren on issues of common concern to Arizona tribes 

because it strengthens our collective sovereignty and helps us fulfill our responsibilities to our individual tribal communities. 

There is no better example of this united and collective action among Arizona 

tribes than the 17 tribe coalition that jointly negotiated and worked to pass by voter 

referendum Proposition 202—the 2002 Tribal—State compacts between Arizona 

gaming tribes, including the Nation, and the State of Arizona. Ironically, however, 

it is Tohono O’odham’s unilateral breach of this very Compact and the spirit of unity 

37 

6See also Exhibit 6, in which the Nation admits in documents filed in federal district court 

that ‘‘various parties’’ viewed the statements made in the voter materials and otherwise as a 

commitment that there would be no new gaming sites in the Phoenix metropolitan area. (Admission 40, pp. 6–7). 

that has bound each tribe to the commitments made in those agreements that now 

threatens tribal sovereignty and has compelled the Community and 11 other Arizona tribes to publicly oppose Tohono O’odham’s efforts. 

We are here today in support of H.R. 2938 because in our view, H.R. 2938 explicitly recognizes and respects tribal sovereignty by upholding the commitments that 

all of the 17 tribes made during the compact process and that were memorialized 

through passage of Proposition 202. 

Here, H.R. 2938 is narrowly tailored to maintain the status quo and sustain the 

carefully negotiated gaming structure, voted on by the citizens of Arizona. Without 

H.R. 2938, Tohono O’odham will proceed on its path to circumvent existing gaming 

restriction, both under Federal and State law, conduct gaming far from their existing reservation, and most importantly jeopardize the other Arizona tribes’ existing 

rights under Federal law that we all share. As sovereign nations, we cannot simply 

stand by and watch someone, albeit another Arizona tribe, threaten our gaming 

rights and unravel the comprehensive and inter-connected gaming structure in Arizona. Accordingly, we urge passage of H.R. 2938 to uphold tribal sovereignty. 

IV. Arizona Compact 

We and many other Arizona tribes believe that the existing tribal-state gaming 

compacts are the model in the Indian gaming industry. It is regulated at all levels 

of government (tribal, state, and federal), is limited in both the number of gaming 

devices and locations, benefits both gaming and non-gaming tribes alike, benefits 

local municipalities throughout the state, and is beneficial to the State of Arizona. 

But most importantly, the citizens of Arizona benefit because the tribal-state gaming compacts were the direct result of a voter approved ballot initiative in 2002. 

Today, the proposed casino development project by the Nation runs contrary to 

what the voters approved in 2002 and threatens the existing tribal-state gaming 

compacts. For example, prior to the passage of the voter approved ballot initiative 

(‘‘Prop 202’’) which culminated in the existing Tribal-State gaming compacts, tribal 

leaders held extensive negotiations on an acceptable framework for all tribes. Importantly, 16 tribal leaders, including the Nation, signed an Agreement in Principle 

(‘‘AIP’’) to make a good faith effort to maintain a cooperative relationship as to gaming matters and compact renegotiation. See Exhibit 4. 

Specifically, the AIP stated that tribal leaders would make ‘‘Good Faith’’ efforts 

to share among themselves the details of compact renegotiations with the State of 

Arizona. Further, tribal leaders agreed to make ‘‘Good Faith’’ efforts to develop and 

maintain consistent positions and to notify other tribal leaders if they believed they 

could not abide by the AIP. 

We negotiated in good faith with all Arizona tribes and the Governor of Arizona 

to craft a tribal-state gaming compact that preserved tribal exclusivity for casino 

gaming, allowed for larger casinos and machine allotments with the ability to expand machine allotments through transfer agreements with rural tribes, and limited 

the number of casinos in the Phoenix metropolitan area. In order to reach a deal 

with the Governor of Arizona all tribes, including the Nation, had to agree that no 

more than seven casinos could be located in the Phoenix metropolitan area. 

This meant that the Salt River Pima-Maricopa Indian Community and the three 

other Phoenix Metro tribes (Ak-Chin, Gila River & Fort McDowell) each had to give 

up their rights to one casino. The Tohono O’odham tribe was aware of this concession on the part of other tribes and was fully aware that this was a key deal point 

for the State of Arizona that needed to be made if negotiations were to move forward. 

However, it is clear the Nation began actively seeking to purchase land in the 

Phoenix area for the sole purpose of establishing a casino, prior to the ratification 

of the tribal-state compacts. As a result, many Arizona tribes have opposed the actions of the Nation. Indeed, Exhibit 5, a chronology of events from the time of enactment of the original land settlement further clarify the intent of Congress, the State 

of Arizona and Indian tribes throughout the state. 

Tellingly Chairman Norris has not denied, because he could not, that the 17 tribe 

coalition had made promises directly to the Arizona voters that there would be no 

more casinos in the Phoenix metropolitan area. When confronted his public response 

to some of these tribes was, ‘‘those are just words on a publicity pamphlet.’’ 6

Arizona Tribes overwhelmingly agree that the collaborative approach to crafting 

the current tribal-state compact has been a great benefit to tribal communities, local 

38 

7 Contrary to the Nation’s statements that this legislation is being prompted by its victories 

in court, the Nation has either lost or is fighting an appeal on major issues. For example, the 

federal district court issued an injunction against the United States prohibiting it from taking 

the land into trust until the appeals on lower court decisions have been heard and decided. In 

June, a court rejected the Nation’s attempt to keep other Arizona tribes out of a legal action 

aimed at protecting the integrity of the gaming compact, and the court rejected Tohono 

O’odham’s attempt to dismiss the legal counts of that suit. In August, the NIGC disapproved 

communities—such as our neighbors, the Cities of Tempe and Scottsdale, for the 

State, and the people of Arizona. 

However, not then and certainly not now, did we expect to be here today to say 

that one of our sister tribes did not act in ‘‘good faith’’. However, the record is clear 

there were ongoing efforts by the Nation government to purchase land, have it 

taken into trust status and develop a casino. 

It is not an easy thing to stand here and talk about a lack of ‘‘good faith’’, and 

we do so reluctantly. However, we act today so that in future years, we will not 

have to look back and say to all, that ‘‘we should have said something.’’ 

V. The Nation already has a thriving gaming enterprise with three 

operating casinos. 

The Nation already has very successful gaming enterprise. The Nation operates 

two casinos in the Tucson metropolitan area and an additional casino in Why, Arizona. The success of the Nation’s gaming enterprise was recently highlighted in Indian Country Today. See Exhibit 7. Additionally, under the current gaming Compact, the Nation is allowed to develop a fourth casino on their existing reservation 

lands, including in the Tucson metropolitan area. H.R. 2938 would not impact the 

Tribe’s existing 3 casinos or impact its ability to develop a fourth casino on its existing reservation. 

VI. Congressional action is necessary 

The Nation’s secretive and deceptive actions have resulted in litigation in the federal courts from the District of Columbia to the State of Arizona and up to the Court 

of Appeals for the Ninth Circuit. Significantly, however, not one of these cases has 

dealt with the Nation’s claim that the Glendale land is the ‘‘settlement of a land 

claim’’. 

Why? Because the Nation has manipulated the land-into-trust and gaming eligibility process in a calculated way to prevent the public and any other interested 

party from ever challenging their notion that the Gila Bend Act settled a land claim 

or that the Glendale parcel actually qualifies for Indian gaming. Definitive action 

by Congress is therefore necessary to resolve, once and for all, the intent of the Gila 

Bend Act and more importantly, preserve the deal that was struck in 2002. 

Indeed, this Congress has often clarified—even retroactively—that certain land 

acquisition bills were never intended to be used for gaming, especially on lands far 

flung from existing reservation lands. Of course, the Nation prefers to keep things 

tied up in court while blaming everyone else for the state of uncertainty created by 

their unilateral actions. More problematic, however, is the Nation’s public relations 

campaign that is premised on taking procedural orders from the various courts and 

implying that the law sanctions off-reservation urban gaming in Arizona. Nothing 

could be farther from the truth. Only Congress has the power to put an end to the 

Nation’s costly courtroom tactics. 

While the Arizona tribal community, the state, and the co-sponsors of the bill 

would welcome a resolution that ensures that there would be no casino gaming in 

Glendale, or other attempts to game on lands removed from Tohono O’odham’s current reservation in the Tucson area, one cannot simply turn a blind eye to the fact 

that Tohono O’odham’s current proposal to game in Glendale is illegal and violates 

the agreement that Tohono O’odham made with other Arizona tribes, the state, and 

with Arizona voters in 2002. It is therefore particularly ironic that the Nation 

claims the trust responsibility would be violated by this measure. In reality, the 

trust responsibility is a further reason to enact H.R. 2938—without it, the self-interested economic desires of one tribe would be advanced to the detriment of every 

other gaming tribe in Arizona. 

Furthermore, because courts often struggle with interpreting congressional intent 

and will often invite Congress to clarify a statute that has become controversial, 

Congress is uniquely situated to clarify the Gila Bend Act that is being misused by 

Tohono O’odham and to address an issue that the administration seems reluctant 

to address. In doing so, Congress can ensure that Tohono O’odham will not be allowed to develop a casino in Glendale, a result never envisioned by Congress in the 

first instance, and which the Nation explicitly promised it would not do in the Compact and Prop 202 process.7

39 

the Nation’s request for approval of an amendment to its gaming ordinance, and, in September, 

a court ruled against the Nation’s attempts to stop the discovery of salient facts about Tohono 

O’odham’s purchases of land under the Gila Bend Act, including its use of a sham corporation. 

The Nation has manipulated the regulatory review process in a thus far successful attempt to shield the ultimate question—gaming eligibility—from judicial review. If the bill fails and the process continues, there is a strong possibility that 

the Department of Interior has been maneuvered into a position where it will be 

forced to render an opinion on gaming eligibility totally separate from any vehicle 

that would give interested parties the opportunity to challenge that decision. Thus 

Congress must act. 

There are also important practical considerations that compel Congressional action now. Among them, taxpayers and other tribes in Arizona should not have to 

wait and continue to have to spend time and money to fight against the unfair and 

dubious actions by the Nation. The result is that this bill would clarify what everyone except the Nation understands, that the Gila Bend Act cannot be used to shoehorn an off-reservation casino into Glendale or any other location not on its existing 

reservation. 

While the Arizona tribes who support H.R. 2938 do not want to have to be critical 

of the Nation’s conduct here, it is hard to avoid the fact that it has repeatedly 

thwarted the normal process for obtaining federal approval of Indian gaming by trying to get federal regulators at the National Indian Gaming Commission to approve 

the Tribe’s Glendale plan as part of its existing gaming ordinance and by engineering procedural moves at Interior to avoid review there. 

VII. Summary 

The Salt River Pima Maricopa Indian Community, and the other tribes from Arizona that are present today, urge Congress to pass H.R. 2938. It is needed to clarify 

the original Gila Bend act so that any land purchased since its enactment is not 

eligible for Class II or Class III gaming pursuant to the Indian Gaming Regulatory 

Act (IGRA). The clarification does not interfere with the Nation’s desire to have land 

taken into trust. It maintains the status quo in Arizona and does not adversely affect any tribe. Without this bill, the other Arizona Tribes may suffer because the 

current gaming compacts could be nullified. This bill does not prevent the Nation 

from acquiring the land in trust and establishing other economic development. We 

support this legislation. 

Mr. YOUNG. Thank you, Madame President. The Hon. Arlen 

Quetawki, Governor of the Pueblo of Zuni. You are up. 

STATEMENT OF THE HONORABLE ARLEN P. QUETAWKI, SR., 

GOVERNOR, PUEBLO OF ZUNI 

Mr. QUETAWKI. Thank you, Chairman. It is great to have this opportunity to testify on behalf of the Pueblo of Zuni. Chairman and 

Ranking Member, thank you for the opportunity to address the 

Subcommittee. 

I am Governor Arlen P. Quetawki, Sr. I represent the Pueblo of 

Zuni and its 11,000 members. Our lands are located in the States 

of Arizona and New Mexico. I am here today to speak about the 

Zuni Pueblo’s views on a non-gaming tribe and the purpose of 

H.R. 2938. 

We are a remote tribe, and we do not have a casino in Arizona 

or New Mexico. However, under our gaming compact we have with 

Arizona, we are able to transfer our slot machine allocation, under 

lease agreements, to other tribes located in better markets. This 

was a negotiated compromise reached among Arizona tribes and 

the State through the current gaming compacts. 

In return for agreeing to limits on gaming in the Phoenix and 

Tucson areas, and for giving up off-reservation gaming near these 

markets, we get to share in gaming revenues generated through 

transfer agreements. 

40 

As a remote tribe with limited economic opportunities, those 

funds have been essential. We use and rely on these revenues to 

support our limited government operations, and have dedicated 

some of these funds to reacquire aboriginal lands, and to fund a 

wellness center to treat diabetes. 

Our concern with the proposed Glendale casino is that it would 

unravel the negotiated balance and benefits we achieved through 

the compacts. First of all, the casino will break the promise of all 

tribes made about limiting casino locations in securing the passage 

of Prop 202. The people of Arizona have shown they approve that 

the benefits of limited Indian gaming. We do not wish to backtrack 

on those commitments. 

Second, we anticipate that the Glendale casino proposal will blur 

the distinction which the Arizona voters supported in their approval of Prop 202: that Class III gaming be limited to reservation 

lands. With a new casino established on new tribal lands in Glendale, non-Indian interests within the State will seek the right to 

conduct Class III gaming. Then tribes may lose their exclusive 

right to conduct Class III gaming. And if that occurs, and the compacts are void, the tribes in the urban markets will no longer need 

to make transfer payments to tribes like Zuni. Thus, this project 

comes at the expense of all other Arizona tribes. 

We believe if this occurs, the Zuni Pueblo, like remote tribes, will 

suffer the most. For us, it will mean the loss of revenues provided 

to us under the compact, which we depend on. 

Let me be clear. We support the Tohonos’ efforts to exercise its 

rights to lands under the 1986 Act, but our concern is how that Act 

is being used, and the impacts it would cause for my tribe and 

other Arizona tribes. For that reason, we support the narrow scope 

of H.R. 2938, because we believe it addresses this problem. 

The measure would not impact tribal sovereignty, and would not 

impact the Indian Gaming Regulatory Act. Instead, the law merely 

reflects the common understanding of the 1986 Act. Indeed, the bill 

would maintain the stability of the current compact structure; 

thus, securing sovereignty for all Arizona tribes. 

As a tribe in both Arizona and New Mexico, we have seen firsthand the harm that can result when a tribe tries to obtain off-reservation land for gaming. In New Mexico, the Pueblo of Hamus’s 

application to open a casino 300 miles away has brought unfavorable attention from Congress and the New Mexico Legislature. 

None of this attention has been positive, and the ill will it created 

among numerous stakeholders remains. 

We think that the Department of the Interior made the right decision when it recently denied the application for that casino. We 

hope that relationships among tribes and other interested groups 

will be restored, and strengthen with the passage of time, just as 

we will see in Arizona, after this dispute is resolved. 

As you examine this bill and the controversy in Arizona which 

it addresses, we ask that you recognize and support the benefits of 

Indian gaming in Arizona under the current compact structure. 

That structure works because it supports everyone, including my 

tribe. And if appropriate steps are not taken to maintain the stability of the compacts, ultimately my tribe and all tribes in Arizona 

will lose. 

41 

Thank you for allowing me to speak, and I am happy to answer 

any questions you may have. 

[The prepared statement of Mr. Quetawki follows:] 

Statement of The Honorable Arlen Quetawki, Sr., 

Governor, Pueblo of Zuni 

My name is Arlen Quetawki, Sr and I am the Governor of the Pueblo of Zuni 

which has approximately 11,000 members. Zuni lands are located in the States of 

Arizona and New Mexico. 

My remarks concern H.R. 2938, ‘‘The Gila Bend Indian Reservation Lands Replacement Clarification Act,’’ which the Zuni Pueblo supports for the reasons given 

below. 

Zuni Pueblo is a rural tribe and does not have a casino in either our Arizona or 

New Mexico lands. Even though Zuni Pueblo is not a gaming tribe we are familiar 

with the Indian gaming issues that affect tribes in both states. From 1999 to 2002, 

Arizona tribes accomplished something unique in Indian country; they formed a coalition to jointly negotiate a compact with the Arizona Governor that balanced the 

interests of tribes in large markets, tribes in small markets, and tribes like Zuni 

that have no market due to that fact our lands in Arizona are very remote. Under 

the Tribal-State gaming compact, which was approved by the Arizona voters in 2002 

when they voted to pass the Proposition 202 initiative, we are able to transfer our 

slot-machine allocation under lease agreements to other tribes that are located in 

better gaming markets. 

This important compromise was a negotiated balance of interests reached among 

the Arizona tribes and with the State through the current Arizona gaming compacts. In return for our 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, we get to share in gaming revenues generated in 

these markets through transfer agreements. 

As a result of that balance of interests, the Zuni Pueblo receives revenues from 

gaming tribes located closer to the metropolitan markets. As a rural tribe which 

struggles with severely limited economic opportunities, those funds have been essential. We use and rely upon those revenues to support our limited government operations. We have also dedicated a portion of those funds to develop the Pueblo’s new 

Wellness Center, which will be instrumental in our fight against the growing rate 

of diabetes among our people. Lastly, those funds have enabled the Pueblo to reacquire aboriginal lands in Arizona which link our main reservation to the lands containing the sacred Zuni Heaven. We recognize that the stability and negotiated balance of the compact structure in Arizona was designed for the interests of all participating tribes, and we are very grateful for the revenues it has provided us. 

Our concern with the proposed Glendale Casino by the Tohono O’odham Nation 

is that it would threaten to unravel the negotiated balance and benefits we achieved 

through our gaming compacts. First of all, the venture would break the promise all 

tribes made about limiting casino locations in securing the passage of Proposition 

202, which authorized the State to enter into the gaming compacts which are currently in effect. The people of Arizona have repeatedly shown they approve the benefits of Indian gaming, but only if it is limited in scope, location and size. We do 

not wish to backtrack on those commitments. 

Second, we anticipate that the Glendale Casino proposal would blur the distinction which the Arizona voters supported in their approval of Proposition 202, that 

Class III gaming be limited to what was recognized as Indian reservations in existence in 2002. With a new casino established on new tribal lands within a large nonIndian metropolitan area, other competing interests within the State will also seek 

the right to conduct Class III gaming. And, if the tribes lose their exclusive right 

to conduct Class III gaming, as assured in the compacts, those compact terms will 

be voided and the limits placed on gaming will be lifted. If that occurs, the tribes 

in the urban markets will no longer need to make transfer payments to rural tribes 

to acquire rights to additional gaming devices. Thus, this project which is sought 

to expand Class III gaming for one Indian Tribe could be completed at the expense 

of all other Arizona tribes. We believe that if this occurs, the Zuni Pueblo, like other 

rural tribes will suffer the most. For us, it would mean the loss of revenues provided 

to us under the compact, which we depend upon. 

Plus, it must not be overlooked that the only protection that the non-gaming 

tribes had when the compacts were approved by Interior was its review to determine whether the compacts were consistent with its trust obligation to Indians. On 

their face, there would not have been a concern, given that the state and the tribes 

42 

were acting in concert, and the voters placed their imprimatur on the deal struck 

by Governor Hull and the tribal leader-negotiators. There is no way in the world 

that the non-gaming tribes would have willingly exposed ourselves to the uncertainty that has resulted from the Glendale casino plan announced by the Tohono 

O’odham Nation only two years ago. Nor would we have asked Interior to approve 

the compact had we known of the intention of our fellow tribe. 

Zuni Pueblo supports the Tohono O’odham Nation’s efforts to exercise its rights 

under federal law to remedy the taking of its lands in its San Lucy District through 

passage of the Gila Bend Indian Reservation Lands Replacement Act. As a fellow 

tribe we understand the importance of remedying past wrongs. All tribes have suffered hardship and many continue seek redress for past wrongs. So we are sympathetic but our sympathy has limits when these past wrongs are used to excuse concealing a plan to gain a competitive advantage over fellow tribes when it had a duty 

to disclose such a plan, and this plan puts all other Arizona tribes gaming ventures 

at risk. 

Moreover, it should not be ignored that the Tohono O’odham received $30 Million 

dollars under the Land Replacement Act and was able to purchase over 16,000 acres 

with these funds as compensation for the 9,880 acres that were flooded. Nowhere 

in the Land Replacement Act does it say that the Tohono O’odham had a right to 

game on lands placed into trust under the Land Replacement Act, let alone well outside of its aboriginal territory. But, even if, for the sake of argument, that legislation can be interpreted to allow the Tohono O’odham to conduct gaming on lands 

placed into trust after 1988, the Tohono O’odham agreed not to seek expansion of 

its casinos into the Phoenix metropolitan area when it contributed to the Proposition 202 campaign in which it and other tribes promised voters in campaign materials that there would be no additional casinos in the Phoenix metropolitan areas. 

The Zuni Pueblo is very concerned with how this legislation is now to be interpreted by Tohono O’odham, and the impacts it would cause for my tribe and other 

Indian tribes in Arizona. For that reason, we support the narrow scope of H.R. 2938 

because we believe it is the simplest solution to this problem. The measure would 

not impact tribal sovereignty and would not impact the Indian Gaming Regulatory 

Act, whether in Arizona or elsewhere within the country. Instead, the law merely 

states what had been the common understanding of the rights and remedies available under the Land Replacement Act. In that regard, the measure would maintain 

the stability of the current compact structure and the recognition of the established 

reservation boundaries in Arizona, which had been the basis for the Proposition 202 

negotiations by the tribes and the ultimate approval by the State voters. 

As a Tribe in both Arizona and New Mexico, we have seen firsthand the harm 

which can result when a tribe tries to obtain noncontiguous land for gaming. In 

New Mexico, the ensuing battles and ill will stemming from the application by the 

Pueblo of Jemez to open a casino three hundred miles away has brought unfavorable attention from Congress, the U.S. Senators, the New Mexico Legislature, and 

the voters of the State. None of this attention has been positive, and the ill will it 

created among numerous parties and stake holders still remain. We think the Department of Interior made the right decision when it recently denied the application 

for that casino, and we hope that relationships among tribes and other interested 

groups will be restored and strengthened with passage of time, just as we hope to 

see in Arizona after Glendale casino dispute is resolved. 

As your subcommittee examines this legislation and the controversy in Arizona 

which it is intended to address, we ask that you recognize and support the benefits 

of Indian gaming in Arizona under the current compact arrangement. That arrangement works because it supports everyone, including my Tribe. And if appropriate 

steps are not taken to maintain this stability, ultimately my Tribe and all tribes 

in Arizona will lose. 

Thank you for the opportunity to provide the Subcommittee with this testimony. 

Mr. YOUNG. Thank you. And I do appreciate both of you giving 

testimony in a very concise period of time. So the rest of you recognize that, too. 

The Hon. Ned Norris, Jr., Chairman of the Tohono O’odham 

Nation. 

43 

STATEMENT OF THE HONORABLE NED NORRIS, JR., 

CHAIRMAN, TOHONO O’ODHAM NATION 

Mr. NORRIS. Thank you, Mr. Chairman. Before I begin in my oral 

testimony, I would like to acknowledge my fellow tribal leaders in 

the room; my fellow tribal leaders sitting here at the panel with 

me, as well. 

But also I would like to recognize one of our Tribal Council members from the Tohono O’odham Legislative Council that is here 

with us: Councilwoman Evelyn Juan-Manuel. 

I would also like to recognize two members of the Gila Bend 

Indian Reservation, which we now call the San Lucy District. They 

are members of the District Council there. Councilman Gerald 

Pablo, and Councilwoman Caroline Mecham. 

Chairman Young, Congressman Luja ́n, and distinguished members of the Committee, I am Ned Norris, Jr., Chairman of the 

Tohono O’odham Nation. The Nation has some 30,000 members. 

Our reservation lands, which are not contiguous, are located in 

Maricopa, Pima, and Pinal Counties. 

One of our reservation areas was the 10,297-acre Gila Bend 

Indian reservation, which was set aside for us in the 1880s, and 

which is in Maricopa County. Against the express wishes of the 

Nation, the Corps of Engineers built a dam that flooded the Gila 

Bend Indian reservation. The land was rendered useless, and the 

people who lived there were crowded into a 40-acre village. 

Congress recognized that the flooding of our Gila Bend reservation had caused great hardship, because almost the entire reservation was unusable. The United States tried to replace our lost land 

with public domain land suitable for agriculture within a 100-mile 

radius of the reservation, but that land turned out not to be possible, but that turned out not to be possible. 

In 1986 the Nation and the United States came to an agreement 

to settle our property rights claims relating to the flooding of the 

Gila Bend reservation. The settlement agreement was ratified by 

the United States when Congress passed, and President Reagan 

signed, the Gila Bend Indian Reservation Lands Replacement Act. 

H.R. 2938 would fundamentally alter that settlement agreement. 

I must convey the Nation’s profound dismay that the sponsors of 

H.R. 2938 have moved to do this without the Nation’s consent; indeed, without even one moment of consultation with the Nation before the bill was introduced. 

It is my hope that after you know more about the Nation and our 

land claim settlement, that you will reject H.R. 2938. It sets a dangerous precedent for all tribes. 

In the Act, Congress directed the Department of the Interior to 

accept into trust the same number of acres that had been taken 

from us, in any of the three counties where we already have reservation land. The Act specifically states that replacement lands 

should be suitable for non-agricultural economic use; and that once 

it is in trust, the land must be, and I quote, ‘‘deemed to be an 

Indian reservation for all purposes.’’ 

Relying on the United States’ commitment, the Nation bought 

about 135 acres of land in the West Valley area of Maricopa County, near the City of Peoria’s shopping district and the City of GlenVerDate Nov 24 2008 16:43 Oct 04, 2012 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6602 L:\DOCS\70596.TXT Hresour1 PsN: KATHY
44 

dale’s sports and entertainment district. Our planned development 

is expected to create 9,000 new jobs. 

It took some years after we purchased this property before we 

made a final decision to use it for this development. But once we 

did, we immediately reached out to our local elected officials and 

the community to develop the same kind of good, close working relationships we have with the communities where our other gaming 

facilities are located. 

In August of 2010, the Department of the Interior issued a decision to take our West Valley land into trust. The Gila River Indian 

community, the City of Glendale, and others have challenged the 

Department of the Interior’s decision. Our opponents say that the 

Lands Replacement Act could not have been intended to allow use 

of our replacement lands for gaming. But this is just not true. 

Co-sponsors of our Act were directly involved in drafting the 

Indian Gaming Regulatory Act, at the same time they were working on our Settlement Act. If they had wanted to ban gaming on 

our replacement lands, they knew how to do it, but they did not. 

Enactment of H.R. 2938 would create a very ugly precedent. The 

United States would unilaterally break the settlement agreements 

it made with the Nation a quarter of a century ago, which would 

be yet another black mark in the history of the United States’ broken promises to Indian tribes. 

In addition, enactment of H.R. 2938 would create new breach-ofcontract, breach-of-trust, and takings claims against the United 

States for breaking the settlement agreement under the Lands Replacement Act, exposing the United States and American taxpayers 

to substantial liability, including compensation for the resources 

the Nation has invested in reliance on the current language of the 

Settlement Act, and for the economic benefits of the Nation we will 

lose if H.R. 2938 is enacted. 

Enactment of H.R. 2938 would have a real negative effect on the 

Nation and its people. It will prevent the Nation from reducing its 

dependence on Federal funding, and prevent the Nation from getting closer to being able to adequately provide for its people. 

I should note here that nearly half of our families on the reservation live below the poverty line, and more than 21 percent of our 

adult members are unemployed. But enactment of H.R. 2938 will 

not just hurt the Nation; it will also hurt the people of the West 

Valley. It will kill 9,000 jobs that would be directly created by our 

proposed development, and deprive the West Valley of the thousands of other jobs that would result from new local spending. 

Finally, enactment of H.R. 2938 would directly interfere with ongoing litigation in both Federal and State Courts. These actions 

will determine whether the Nation has complied with the Lands 

Replacement Act and our Tribal-State Gaming Compact. So far, the 

Courts have confirmed that the Nation and the Department have 

acted entirely in compliance with the law. 

I hope the Subcommittee realizes that it is precisely because the 

opponents, by losing in Courts, that they are now pushing Congress 

to change the law. 

Mr. Chairman, members of the Committee, H.R. 2938 is nothing 

more than special-interest legislation designed to protect the market interests of a few, at the expense of the greater good of many. 

45 

The Tohono O’odham Nation has played by the rules every step of 

the way. All we ask is that you let us complete this journey without changing the rules so late in the game. 

I thank you again for giving me this opportunity to speak to the 

Committee. I would be happy to answer any questions, and ask 

that my oral testimony become part of the record. Thank you very 

much, Mr. Chairman. 

[The prepared statement of Mr. Norris follows:] 

Statement of The Honorable Ned Norris, Jr., Chairman, 

The Tohono O’odham Nation of Arizona 

Chairman Young, Ranking Member Boren, and distinguished members of the 

Subcommittee on Indian and Alaska Native Affairs, my name is Ned Norris, Jr. I 

am the Chairman of the Tohono O’odham Nation. Twenty-five years ago the United 

States made a solemn promise to the Nation to redress the hardship and damage 

our people suffered when the Army Corps of Engineers flooded the portion of our 

lands known as the Gila Bend Indian Reservation. The United States’ promise was 

enacted into federal law when Congress passed and President Reagan signed the 

Gila Bend Indian Reservation Lands Replacement Act (the Lands Replacement Act), 

Public Law 99–503. 

I am here today to convey the Tohono O’odham Nation’s outrage and profound 

sense of betrayal. H.R. 2938 would fundamentally alter the Lands Replacement Act, 

a settlement statute on which we have now relied for a full quarter of a century. 

My Nation was not consulted by the co-sponsors of H.R. 2938 before it was introduced nineteen days ago. And while I have always welcomed the opportunity to discuss the Lands Replacement Act, the Nation was not consulted as to the date of 

this hearing. Not only did it leave the Nation an inadequate time for preparation, 

it also takes place on one of the holiest of the Tohono O’odham religious days, precluding my participation in ceremonies of profound significance to my people. 

That said, I do appreciate that I have been given an opportunity to share the Nation’s story with you today. It is my great hope that once the Subcommittee knows 

more about the Nation, about our land claim settlement, and about what is really 

going on in the West Valley, you will reject H.R. 2938. I am confident that you will 

live up to Justice Hugo Black’s admonition that ‘‘Great nations, like great men, 

should keep their word.’’ Federal Power Comm’n v. Tuscarora Indian Nation, 362 

US 99, 142 (1960) (Black, J., dissenting). 

The Gila Bend Indian Reservation and the Flooding Caused by A Federal 

Dam 

The Tohono O’odham Nation has approximately 30,000 members. Our reservation 

lands are located in central and southern Arizona in Maricopa County (where Phoenix is located), Pima County, and Pinal County. Historically, the Nation’s lands included four separate areas, one of which was known as the Gila Bend Indian Reservation, located near the town of Gila Bend on the Gila River. Gila Bend is located 

in Maricopa County, and is part of the Phoenix metropolitan area. Before the events 

that led up to enactment of the Lands Replacement Act in 1986, the Gila Bend Indian Reservation encompassed about 10,297 acres. 

In 1950, Congress enacted the Flood Control Act, Pub. L. 81–516, 64 Stat. 176 

(1950), which, among other things authorized construction of the Painted Rock Dam 

on the Gila River. The primary purpose of the Painted Rock Dam was to prevent 

the flooding of nearby non-Indian agricultural operations. As Congress and the Department of the Interior later recognized, the Flood Control Act of 1950 did not authorize the condemnation of the Nation’s lands. 

In the 1950s, the U.S. Army Corps of Engineers began construction of the Painted 

Rock Dam, ten miles downstream from the Gila Bend Indian Reservation. Construction was completed in 1960. Despite the assurances of the Bureau of Indian Affairs 

and the Corps that periodic flooding caused by the dam would not harm the Nation’s 

agricultural use of its reservation lands, and despite a 1963 U.S. Geological Survey 

report asserting that the long range effects of flooding would be ‘‘unimportant,’’ the 

Gila Bend Indian Reservation sustained almost continual flooding throughout the 

late 1970s and early 1980s. Most of the people living there had to be relocated to 

a small 40-acre village known as San Lucy. The flooding caused pronounced economic hardship, destroying a 750-acre tribally owned and operated farm that had 

been developed at tribal expense, and rendering the remaining acreage unusable for 

economic development. 

46 

In 1982, Congress authorized the Secretary of the Interior to conduct studies to 

determine which of the Nation’s lands had been rendered unusable for agriculture. 

Southern Arizona Water Rights Settlement Act of 1982 (SAWRSA), Pub. L. No. 97– 

293, sec. 308(a), 97 Stat. 1274 (1982); H.R. Rep. No. 99–851 at 6. Congress also authorized the Secretary, with the consent of the Nation, to exchange public domain 

lands for those reservation lands that had been ruined. SAWRSA, Sec. 308(b), H.R. 

Rep. No. 99–851 at 6. 

A study of the reservation lands carried out in 1983 under SAWRSA determined 

that the flooding had rendered almost the entire Gila Bend Indian Reservation, 

more than 9,952 acres, unusable for either agriculture or livestock grazing purposes. 

H.R. Rep. No. 99–851 at 6. A later 1986 study to identify replacement lands within 

a 100-mile radius of the reservation concluded that none of the sites identified were 

suitable replacement lands, from either a lands and water resources standpoint, or 

from a socio-economic standpoint. 

The Gila Bend Indian Reservation Lands Replacement Act 

The destruction of nearly 10,000 acres of the Nation’s lands caused extreme hardship for the Nation, giving rise to a number of claims against the United States. 

The United States was unable to redress the harm to the Nation by providing replacement lands for agriculture. So, in 1986, more than a quarter century after the 

dam was built, Congress created an alternative settlement mechanism to address 

the wrong done to our people and to settle our claims against the federal government. That was the origin of the Gila Bend Indian Reservation Lands Replacement 

Act. 

The House Committee considering enactment of the Lands Replacement Act concluded that the Nation had a reservation ‘‘which for all practical purposes cannot 

be used to provide any kind of sustaining economy. Significant opportunities for employment or economic development in the town of Gila Bend. . .simply do not exist.’’ 

H.R. Rep. No. 99–851 at 7. As a result, Congress explicitly directed the Secretary 

of the Interior in the Lands Replacement Act to accept into trust the same number 

of acres that had been taken from us, and explicitly contemplated that the lands 

would be for non-agricultural development. Congress specifically stated in the Act 

that the intent was to ‘‘facilitate replacement of reservation lands with lands suitable for sustained economic use which is not principally farming.’’ P.L. 99–503, sec. 

2(4), see also H.R. Rep. No. 99–851 at 9. 

The Lands Replacement Act provides funds for land acquisition, and if certain requirements are met, it directs the Secretary to accept into trust up to 9,880 acres 

of replacement land within the three counties (Pima, Pinal, and Maricopa) in which 

our other reservation lands are located. P.L. 99–503, sec. 6(c) and (d). The lands 

may not be incorporated into any city or town. Also, the lands must consist of no 

more than three areas of contiguous tracts, including one area contiguous to San 

Lucy Village, unless the Secretary waives this requirement. P.L. 99–503, sec. 6(d). 

If these statutory requirements are met, then, at the request of the Nation, the Secretary of the Interior must accept the lands in trust and the lands thereafter will 

be ‘‘deemed to be a Federal Indian Reservation for all purposes.’’ P.L. 99–503, sec. 

6(d). 

Section 4(a) of the Lands Replacement Act required the Secretary to pay the Nation $30 million in three installments of $10 million if the Nation agreed to assign 

to the United States ‘‘all right, title and interest’’ to 9,880 acres of its land within 

the Gila Bend Indian Reservation. The Act also required the Nation to execute a 

waiver and release of ‘‘any and all claims of water rights or injuries to land or water 

rights with respect to all lands of the Gila Bend Indian Reservation from time immemorial to the date of the execution by the Nation’’ of that waiver. P.L. 99–503, 

sec. 9(a). In October 1987, less than a year after enactment of the Lands Replacement Act, the Nation executed an Agreement that contained this waiver and release, as well as the Nation’s assignment of all right, title, and interest to the Gila 

Bend Indian Reservation. In short, Congress (i) enacted the Lands Replacement Act 

to compensate the Nation fairly for the nearly 10,000 acres of its lands that were 

lost due to the flooding caused by the Painted Rock Dam, and to allow the Nation 

to acquire replacement lands for economic development purposes that were not principally farming; and (ii) required in exchange that the Nation transfer property and 

rights to the United States and release the Nation’s claims against the United 

States, both of which the Nation did years ago. 

The Nation’s West Valley Lands 

After enactment of the Lands Replacement Act, the Nation began working to identify lands that would satisfy the requirements of the Act, so those lands could be 

taken in trust and used for economic development purposes. The Department of the 

47 

Interior already has taken one parcel of land (about 3,200 acres) in trust under the 

Act. One of the parcels that the Nation purchased is the West Valley property in 

Maricopa County, which is situated near the City of Peoria’s upscale Peoria Crossings shopping district as well as the City of Glendale’s sports and entertainment district. The Nation’s West Valley Resort project is predicted to generate some 9,000 

new construction and operations jobs for the West Valley, and the Nation and many 

others in the area believe the project will provide a huge economic boost to the region. The Nation has worked closely with the surrounding community to establish 

itself as a good neighbor and has the support of many in the area for its proposed 

resort casino project, including the Mayor of Peoria, the Peoria Chamber of Commerce, and many local business owners. 

Although the West Valley property is a significant distance from other tribal gaming operations in the Phoenix metropolitan area (the nearest tribal gaming operation is more than twenty miles away), the Nation reached out to nearby tribes to 

discuss its plans and to try to address concerns. The Nation also reached out the 

Mayor of Glendale and its City Council. Despite the expected benefits from the 

project and despite the Nation’s efforts to work with surrounding communities and 

tribes, the City of Glendale opposes the project, as do the Gila River Indian Community and the Salt River Pima-Maricopa Indian Community. These two opponent 

tribes collectively operate five casinos in the greater Phoenix area, a region with 

over 4 million people, and 20 incorporated municipalities, across a land area encompassing approximately 2,000 square miles. 

The Department’s Decision to Acquire the Nation’s Lands in Trust, and the 

Opposition’s Efforts To Try to Block the Trust Acquisition 

On January 28, 2009, the Nation asked the Department of the Interior to accept 

its West Valley property in trust, as required by the Lands Replacement Act. In 

July 2010, the Secretary determined, despite lengthy arguments submitted in opposition by the City of Glendale and the Gila River Indian Community, that the Nation’s land meets the requirements of the Lands Replacement Act and that the Secretary has an obligation to take the land in trust. Accordingly the Secretary issued 

a decision to take the land in trust in August of 2010. 75 Fed. Reg. 52,550 (Aug. 

26, 2010). The Gila River Indian Community, the City of Glendale, and other plaintiffs challenged the decision in federal district court in Arizona, but the district 

court upheld the Secretary’s decision. Gila River Indian Community, et al. v. United 

States and Tohono O’odham Nation, No. 10-cv-1993–DGC (D. Ariz.) (Order dated 

March 3, 2011). Gila River, Glendale, and the other plaintiffs have appealed that 

decision to the Court of Appeals for the Ninth Circuit and the appeal is pending. 

Having failed to convince either the Secretary or the federal district court that 

the Nation was not entitled to have its West Valley property taken into trust, the 

City of Glendale and the Gila River Indian Community lobbied the Arizona state 

legislature for special legislation to allow the City of Glendale to annex the Nation’s 

land—without notice and without any of the procedural requirements usually required for annexation under Arizona law—hoping that annexation would make the 

land ineligible for trust status under the Lands Replacement Act. The Nation challenged that state law, and the federal district court in Arizona found the state annexation law to be preempted by the federal Lands Replacement Act. Tohono 

O’odham Nation v. City of Glendale and State of Arizona, No. 11-cv-279–DGC (D. 

Ariz.) (Order dated June 30, 2011). The City of Glendale and the State of Arizona 

also have appealed that decision to the Ninth Circuit and the appeal is pending. 

In fact, every decision so far relating to the Nation’s fee-to-trust acquisition has 

confirmed the Nation’s rights under the Lands Replacement Act. So now the Gila 

River Indian Community, the City of Glendale, and other parties to the litigation 

have asked Congress to change the Act. More precisely, the proponents of H.R. 2938 

ask Congress to unilaterally amend the Nation’s land settlement, the Lands Replacement Act, an Act that the Department has said is ‘‘akin to a treaty.’’ Tohono 

O’odham Nation v. Acting Phoenix Area Director, Bureau of Indian Affairs, 22 IBIA 

220, 233 (1992). 

Enacting H.R. 2938 Would Break the United States’ Promise to the Nation 

Enacting H.R. 2938 would break the promise made by the United States to the 

Tohono O’odham Nation to compensate the Nation for the nearly 10,000 acres of 

land that it lost due to the actions of the United States in exchange for the transfer 

of the Nation’s Gila Bend land and the release of its rights and claims. More than 

twenty-five years after the United States constructed the Painted Rock Dam, the 

Nation and the United States entered into a settlement, embodied both in the Lands 

Replacement Act and in a formal written settlement agreement. There is absolutely 

no justification for this Congress to back out of the terms of that agreement. If ConVerDate Nov 24 2008 16:43 Oct 04, 2012 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6621 L:\DOCS\70596.TXT Hresour1 PsN: KATHY
48 

gress enacts H.R. 2938, it not only will provide another example in the long, sad 

tradition of the United States breaking its promises to Indian Tribes, but it also will 

burden the United States and its taxpayers with very substantial liability for the 

breach of contract, breach of trust, and takings claims that the Nation will have 

against the United States for breaching the settlement agreement entered into 

under the Lands Replacement Act. 

H.R. 2938 Conflicts with the Intent of the Original Drafters of the Lands 

Replacement Act 

H.R. 2938 seeks to prevent the Nation from using the land it acquires under the 

Lands Replacement Act for gaming-related economic development. This is not a 

‘‘clarification’’ of what the original sponsors of the Lands Replacement Act intended; 

rather, it would be completely inconsistent with what they intended. 

The Nation’s opponents assert that the lands acquired under the Lands Replacement Act were never intended to be used for gaming-related economic development. 

That is simply untrue. Indian gaming was not ‘‘invented’’ with the passage of IGRA 

in 1988. Indian gaming not only existed in 1986 when Congress passed the Lands 

Replacement Act, but the Nation had been operating a gaming business for several 

years in 1986. Moreover, due to the lack of federal restrictions on Indian gaming 

before the IGRA, Congress understood that, if it desired to prohibit gaming on Indian lands, it needed to do so through explicit statutory language. See, e.g., the Florida Indian Land Claims Settlement 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). In each of those pre-IGRA statutes, Congress explicitly 

restricted or banned gaming by those tribes. If Congress had wanted to impose a 

similar restriction on the Nation, it could have done so in the Lands Replacement 

Act—but it did not. 

Moreover, no one can seriously contend that the co-sponsors of the Lands Replacement Act did not understand Indian gaming or that the Nation would be able to 

use its replacement lands for gaming-related economic development. Before Congress passed the Lands Replacement Act, two of its co-sponsors, Senator DeConcini 

and then-Representative McCain, were involved in the consideration of several 

pieces of Indian gaming legislation that were the precursors of IGRA. In 1983, three 

years before the Lands Replacement Act was enacted, an earlier version of IGRA 

(H.R. 4566) co-sponsored by then-Representative McCain contained no restrictions 

whatsoever on when or where land could be acquired in trust for gaming. In 1985, 

Senator DeConcini sat on the Senate Committee on Indian Affairs when it recommended passage of H.R. 1920, which became the primary basis for IGRA. When 

that Committee recommended passage of H.R. 1920 with an amendment in the nature of a substitute, the amendments included a provision excepting land taken into 

trust as part of a settlement of a land claim from the general prohibition on gaming 

on lands acquired after passage of the bill. Both Senator DeConcini and then-Representative McCain would have known that land acquired under the Lands Replacement Act for ’’sustained economic use which is not principally farming’’ might be 

used for gaming, particularly because the Nation was operating a pre-IGRA gaming 

facility across the street from the Tucson airport at the very time that the Lands 

Replacement Act was passed. In addition, these sponsors of the Lands Replacement 

Act were aware of high-profile Indian gaming litigation being conducted in the federal courts during this time period, as the Ninth Circuit rendered its decision confirming the rights of tribes to conduct gaming in early 1986 in Cabazon Band of 

Mission Indians v. County of Riverside, 783 F.2d 900 (9th Cir. 1986). 

In light of the particular knowledge of two co-sponsors of the Lands Replacement 

Act about Indian gaming, the restrictions Congress placed on gaming in other Indian settlements in that time frame, and the high profile litigation that then was 

pending in the courts, it simply is not plausible to suggest that Congress did not 

understand that the language ‘‘[a]ny land which the Secretary holds in trust shall 

be deemed to be a Federal Indian Reservation for all purposes’’ meant that the Nation would be entitled to conduct gaming on those lands. P.L. 99–503, sec. 6(d). 

I also note that the Department of the Interior’s Office of the Solicitor confirmed 

that land acquired under the Lands Replacement Act could be used for gaming as 

far back as 1992. Also in 1992, the Nation informed the State of Arizona during 

compact negotiations of the Nation’s rights under the Lands Replacement Act, including its right to conduct gaming on lands acquired under the Lands Replacement 

Act. The State of Arizona did not object to the Nation gaming on such lands, provided they were held in trust and met the requirements of Section 20 of the IGRA. 

The Nation’s 1993 gaming compact expressly permits gaming on such lands, as does 

the Nation’s 2003 gaming compact. 

49 

Finally, the Gila River Indian Community was well aware that lands acquired 

under the Lands Replacement Act could be used for gaming when Gila River and 

the United States negotiated the Arizona Water Settlements Act in 2004. P.L. 108– 

451 (Dec. 10, 2004). Yet both Gila River and the United States agreed to water 

rights settlement language and settlement legislation which reaffirmed the Nation’s 

rights under the Lands Replacement Act. 

H.R. 2938 Will Cause Real Harm to the Tohono O’odham Nation 

In addition to the injustice of changing the law enacted to compensate the Nation 

and on which the Nation has relied in acquiring land for gaming-related economic 

development, the enactment of H.R. 2938 would have a devastating effect on the 

Tohono O’odham Nation and its people. More than 32 percent of the Nation’s households have annual incomes less than $10,000, over 46 percent of the Nation’s families live below the poverty line, and there is a greater than 21% unemployment rate 

among Tribal members on the reservation. The Nation has devoted an enormous 

amount of time and financial resources to its West Valley project in reliance on existing federal law; if H.R. 2938 is enacted, all the effort and resources the Nation 

has invested to reduce its dependence on federal monies and become self-sufficient, 

as Congress intended in the Lands Replacement Act, would be wasted. 

H.R. 2938 Will Cause Real Harm to the West Valley: It is Job-Killer 

Legislation 

Enactment of H.R. 2938 would kill off 9,000 new construction and operation jobs 

for the West Valley, as well as countless thousands of other jobs that would result 

from new local spending generated by both the resort and the people who work 

there. If Congress takes affirmative action to prevent this non-taxpayer funded economic stimulus from becoming a reality, Congress effectively withholds these thousands of jobs from West Valley residents. 

H.R. 2938 Circumvents Pending Litigation 

Enactment of H.R. 2938 directly interferes with ongoing litigation in both federal 

and state courts. There are currently three separate actions pending in the federal 

District Court for the District of Arizona and in the Court of Appeals for the Ninth 

Circuit. These actions will determine whether the Nation has complied with the 

Lands Replacement Act, other laws, and its Tribal/State gaming compact, whether 

the Department of the Interior has properly implemented the Lands Replacement 

Act, and whether the Act is constitutional and validly enacted in the first place. 

Thus far, the courts have confirmed that the Nation and the Department of the Interior have acted entirely in accordance with the law. For that reason, opponents 

of the Nation’s plans (driven largely by market protection motivations) are pushing 

Congress to change the law. Surely Congress’ role in Indian Affairs is not to create 

special legislation to protect the market share of the few to the detriment of the 

greater good of the many. 

H.R. 2938 Will Create New Litigation: Breach of Trust, Breach of Contract, 

and Takings Claims 

Enactment of H.R. 2938 will create significant new liability for the United States, 

as it will generate causes of action against the United States for breach of contract, 

breach of trust, and takings claims that could result in a substantial sum of money 

being awarded to the Nation. The Lands Replacement Act confirmed an agreement 

between the United States and the Nation, and this legislation reneges on that 

agreement and the promises underlying it. If H.R. 2938 is enacted, the United 

States will be liable for the immense resources that the Nation has spent in reliance 

on that agreement and for the economic development benefit that has been denied 

it. Ultimately, the American taxpayer will have to subsidize the cost of this special 

interest legislation. 

Conclusion 

Mr. Chairman and Subcommittee members, I thank you again for giving me an 

opportunity to speak to this Subcommittee on this legislation. In sum, I must reiterate that enactment of H.R. 2938 would break the United States’ promise, as that 

promise was set forth in a contract and in settlement legislation, to compensate the 

Nation for the destruction of the Gila Bend Indian Reservation. Enactment of 

H.R. 2938 would interfere with ongoing litigation that will decide whether the Nation is entitled to move forward with its West Valley development plan, and would 

destroy the planned creation of 9,000 new jobs for the West Valley area. Enactment 

of H.R. 2938 would create new breach of trust, breach of contract and takings 

claims against the United States, thereby exposing American taxpayers to unnecessary financial risk. And finally, enactment of H.R. 2938 would add yet another 

50 

black mark to the United States’ long history of breaking its promises to Native 

Americans. With all due respect, is the breaking of commitments made in long-established Indian land and water rights settlements really going to be the 112th Congress’ legacy to Indian Country? 

I thank you for your time today, and I would be happy to answer any questions 

you may have. 

Mr. YOUNG. Thank you. Eric, Chief Deputy, Office of the Arizona 

Attorney General, you are up. 

STATEMENT OF ERIC J. BISTROW, CHIEF DEPUTY, 

OFFICE OF THE ARIZONA ATTORNEY GENERAL 

Mr. BISTROW. Mr. Chairman, ladies and gentlemen. Under the 

Gila Bend Act, the unthinkable has happened. The Tohono 

O’odham Nation, in the sole pursuit of money, and without regard 

for its fellow tribes and the citizens of Glendale, secretly purchased 

an unincorporated parcel surrounded by the City of Glendale, and 

announced they would add this land into its reservation, and then 

construct and operate a huge casino. This cannot be what Congress 

intended in the Gila Bend Act. 

But the possibility now looms that a distorted interpretation of 

the Act will permit a casino to be operated on a new tribal reservation, located in the middle of a city, next to a high school and residential neighborhoods. 

The prospect of a casino in Glendale would not only cause untold 

harm to the City and the people of Glendale; it also betrays the 

promises the Nation made to the State and the people of the State 

of Arizona. 

The essential thrust of the Indian Gaming Regulatory Act is that 

casino gaming will be permitted to operate only pursuant to TribalState compacts. It is thought that States and tribes, negotiating in 

good faith, would reach balanced agreements that would protect 

each other’s legitimate interests. 

In Arizona, by the early 2000s, the dog- and horse-racing industries sought to siphon off a large portion of Indian gaming revenues, and asked voters to allow racetracks, located in urban areas, 

to operate thousands of slot machines. This led to a valid initiative 

called Prop 201. 

At the same time, State officials negotiated a compact with 17 of 

Arizona’s 21 Indian tribes. This compact, known as Prop 202, was 

submitted to the voters in November 2002 as an alternative to Prop 

201. Prop 201 was defeated, and Prop 202 was enacted into law. 

What did Prop 202 do? First, it protected Arizona’s Indian tribes 

from non-Indian gaming competition. The only casino gaming in 

Arizona is conducted by Indian tribes. 

It also reduced the number of gaming facilities that could be operated on tribal lands, while expanding the types of games that 

could be operated. 

The policy objectives of Arizona’s officials were clear: The State 

understood that casinos can impose costs on the State and on local 

governments, both in terms of lost revenues and by social ills, such 

as crime, bankruptcy, and pathological gambling behaviors. At the 

same time, there is a recognition that Indian tribes for generations 

had been mired in poverty, and that gaming offered them a real 

51 

opportunity to enhance their economic well-being. Prop 202 forced 

a compromise between these competing interests. 

In reaching this compromise, the State made it clear that it did 

not want large-scale gaming facilities to expand into its heavily 

populated and urban areas. That is why it opposed and campaigned against the horse- and dog-racing initiative. That is why 

it reduced and limited the number of casinos on Indian tribal 

lands. 

Official statements in favor of Prop 202 assured voters that no 

new casinos will be built in the Phoenix metropolitan area. The 

gaming was to be kept on Indian reservations, and not be allowed 

to move into our neighborhoods. 

Every signatory to this compact, including the Nation, understood that the compact sold to the voters of Arizona would not 

allow for any additional casinos in the Phoenix area. Without this 

mutual understanding, there would have been no compact. 

No one from the Nation, during the campaign, ever stated a contrary understanding. No one from the Nation said that it could, or 

that it intended to, purchase property in the heart of Glendale, 

and, under the Gila Bend Act, put a casino on it. Every interested 

party was left in the dark. 

Now we have the specter of the Nation violating the solemn understanding that it reached with the State and its negotiating partners. It cared not that the casino would be located next to a high 

school and neighborhoods. It cared not about the effects of gambling on Glendale. It did not even care about its fellow tribes, and 

how a casino in Glendale would threaten their collective economic 

interests. 

In short, it is not concerned with the balancing of interests that 

had been so delicately carved out in the Compact of 2002. 

Arizona’s Attorney General and Governor support H.R. 2938. 

The bill protects the integrity of the Prop 202 compromise between 

the State and the Indian tribes, and corrects the distortion of the 

Gila Bend Act that has brought us here today. 

Thank you very much. 

[The prepared statement of Mr. Bistrow follows:] 

Statement of Eric J. Bistrow, Chief Deputy, 

Office of the Arizona Attorney General 

I have been a lawyer for 40 years. During my career, I frequently dealt with statutory construction issues. I learned over time that our lawmakers try to redress 

grievances, enact just legislation, and serve the public good. Yet, in spite of their 

best intentions and their careful attention to the wording of legislation, there are 

times when the meaning of the law is perverted and twisted. When that occurs, our 

legislators are dismayed by the unintended consequences of their work. More importantly, public respect for our institutions is diminished. 

Today we find ourselves dealing with the Gila Bend Indian Lands Replacement 

Act. This Act was passed in order to compensate the Tohono O’Odham Nation for 

flood damage to its farming property caused by the federally constructed Painted 

Rock Dam. Congress had benevolent intentions. It voluntarily agreed to pay the Nation $30 Million in exchange for damaged farm land and allowed the Nation to purchase replacement property in certain areas that would be put into its reservation 

system. But this right to put property into trust was not limitless. The Act excluded 

lands located within cities or towns. 

Now anyone with commonsense knows that, in this context, ‘‘within’’ means inside 

the geographical boundaries of the city or town. And I say commonsense because 

no member of Congress would allow a tribe to acquire property in the middle of a 

city and then tell that city: ‘‘you have no power to ever regulate the land, collect 

52 

taxes, impose zoning requirements, require pollution control, or provide for the safety of your citizens; that you cannot do any of these things and more because there 

is a new sovereign government in town and you are helpless to do anything about 

it.’’ The Gila Bend Act was not intended to lead to such nonsensical results. 

And yet the unthinkable happened. The Nation, in the sole pursuit of money, and 

without caring one whit about the sensibilities of its fellow tribes and the citizens 

of Glendale, secretly purchased an unincorporated parcel surrounded by the City of 

Glendale and announced that it would add this land into its reservation and then 

construct and operate a huge casino. It argued that ‘‘within’’ did not mean a ‘‘geographical boundary’’ but instead referred to a ‘‘jurisdictional boundary.’’ 

Even more remarkable, the Department of Interior bought into the Nation’s interpretation of ‘‘within’’ and decided it would accept the land into trust. It gave its imprimatur to an interpretation of a statute that led to absurd consequences and surely up-ended the original intentions of Congress. The possibility now looms that a 

twisted interpretation of the Act will permit a casino to be operated on a new tribal 

reservation located in the middle of a city and next to a high school and residential 

neighborhoods. 

The prospect of a casino in Glendale would not only cause untold harm to the City 

and people of Glendale, it also betrays the promises the Nation made to the State 

and People of Arizona. 

As you know, Congress enacted a comprehensive statutory scheme to regulate Indian gaming in 1988. The essential thrust of the Indian Gaming Regulatory Act is 

that Class III gaming—that is, casinos—will be permitted to operate only pursuant 

to tribal-state compacts. It was thought that states and tribes, negotiating in good 

faith, would reach balanced agreements that would protect each other’s legitimate 

interests. 

IGRA has been a resounding success from an economic perspective. Before IGRA 

was passed in 1988, there were 108 gambling facilities on Indian lands spawning 

some $100 million in revenues. By 2007, 226 tribes offered gaming at 419 sites generating gambling revenues of $26B. Gaming on tribal lands constitutes big business! 

The economic juggernaut of casino style gaming did not pass Arizona by. By the 

early 2000’s, the dog and horse racing industries sought to siphon off a large portion 

of Indian gaming revenues and asked voters to allow race tracks, located in urban 

areas, to operate thousands of slot machines. This led to a ballot initiative, Proposition 201, that was submitted to the voters in 2002. 

At the same time that the dog and horse racing industries were gathering signatures for their ballot initiative, state officials under the leadership of Governor Hull 

negotiated a compact with 17 of Arizona’s 21 Indian Tribes. This compact, known 

as Proposition 202, was submitted to the voters in November 2002 as an alternative 

to Prop 201. State officials opposed the racing track initiative and strongly supported the comprehensive agreement set forth in Prop 202. 

Prop 201 was defeated and Prop 202 was enacted into law over 8 years ago. What 

did Prop 202 do? First and foremost, it protected Arizona’s Indian tribes from nonIndian gaming competition—the only casino gaming in Arizona is conducted by Indian tribes. It also reduced and limited the number of gaming facilities that could 

be operated on tribal lands, while expanding the types of games that could be operated. 

The policy objectives of Arizona’s government officials were clear. The State recognized that there existed a strong aversion to gambling. It understood that casinos 

can impose costs on the State and on local governments, both in terms of lost revenues and by social ills such as crime, bankruptcy, and pathological gambling behaviors. At the same time, there was a recognition that Indian tribes, for generations, 

had been mired in poverty and that gaming offered them a real opportunity to create jobs, rebuild their communities and provide their members with decent schools, 

roads, water facilities, and other vital services. Prop 202 forged a compromise between these competing interests. 

All of the parties to the compact understood the delicate nature of the compromise. The State made it clear that it did not want large scale gaming facilities 

to expand into its heavily populated and urban areas. Indeed, it rejected any such 

efforts. That is why it opposed and campaigned against the horse and dog racing 

track initiative. That is why it reduced and limited the number of casinos on Indian 

tribal lands. Official statements in favor of Prop 202 spoke in terms of ‘‘limited Indian gaming,’’ that ‘‘no new casinos will be built in the Phoenix metropolitan area,’’ 

that gaming was to be kept ‘‘on Indian reservations’’ and not be allowed ‘‘to move 

into our neighborhoods.’’ Every signatory to this compact, including the Nation, understood that the compact entered into by the parties and sold to the voters of Arizona limited the number of facilities each tribe could operate and would not allow 

53 

for any additional casinos in the Phoenix area. Had there not been this mutual understanding, there would have been no compact. 

When the compact was being negotiated and as the campaign to pass Prop 202 

proceeded, no one from the Tohono O’Odham Nation stated a contrary understanding. No one from the Nation told its fellow tribes that it was eyeing a piece 

of property in the heart of Glendale. No one from the Nation said a word that it 

could or that it intended to purchase such property under the Gila Bend Act and 

put a casino on it. The State was left in the dark. Fellow tribes were left in the 

dark. The citizens of this State, and most important, the citizens of Glendale, were 

left in the dark. The Nation allowed Prop 202 to be signed and passed without uttering a word of its intentions to its negotiating partners. 

So now we have the specter of the Nation secretly purchasing this 134 acre parcel 

in 2003, not in its own name, but in the name of a foreign corporation (‘‘Rainier 

Resources LLC’’). Two years ago, it announced its intention to put this property into 

trust under the Gila Bend Act with the avowed purpose to place a casino on the 

site. It knew, in doing so, the casino would be located next to a public high school 

and surrounded by residential homes. It cared not a whit about the solemn understanding reached with the State and its fellow tribal partners. Nor did it care about 

the broad public concerns regarding the deleterious effects of gambling and how 

those effects might harm cities such as Glendale in both social and economic terms. 

It did not even care about its fellow tribes and how a casino in the middle of Glendale would threaten their collective economic interests. In short, it was not concerned with the balancing of interests that had been so delicately carved out in 

2002. It was concerned about one thing: profit. 

The State of Arizona, by its Attorney General, supports H.R. 2938. The bill protects the integrity of the Prop 202 compromise between the State and the Indian 

tribes within its borders, and corrects the distortion of the Gila Bend Act that has 

brought us here today. Thank you. 

Mr. YOUNG. Thank you, sir. The Hon. Robert Barrett. You are 

up, buddy. 

STATEMENT OF THE HONORABLE ROBERT ‘‘BOB’’ BARRETT, 

MAYOR, CITY OF PEORIA, ARIZONA 

Mr. BARRETT. Good afternoon, Chairman. Chairman and distinguished members of the Subcommittee, my name is Bob Barrett, 

and I am the Mayor of the City of Peoria, Arizona. I am speaking 

before you today on my own behalf; I am not representing an official position of the Peoria City Council, which has not yet adopted 

a position. 

Let me be clear from the outset: H.R. 2938 is most certainly not 

about protecting the local community. It is job-killing legislation 

brought by selfish special interests. Unlike other matters this Congress may consider to promote job creation, this bill goes in the opposite direction. As the duly elected Mayor of my community, I cannot stand by while political gamesmanship so blatantly stands between my constituents and the opportunities for employment they 

desperately seek. 

For those of you who are not familiar with greater Phoenix, the 

West Valley refers to the communities west of the City of Phoenix. 

The cities of Peoria and Glendale are the largest communities in 

the West Valley, bordering each other and Phoenix. 

The West Valley has experienced some of the fastest growth in 

Arizona, but has also suffered significantly from the recession, and 

faces economic fragility. The Nation’s West Valley land is not located in the heart of Glendale, unless Glendale wears its heart on 

its sleeve. The Nation’s West Valley is located on an incorporated 

county island adjoining the cities of Peoria and Glendale. 

54 

As you can see on the map, visible on the screen—no, I guess you 

can’t. If you look over here to the display, you are looking north 

from a place roughly hovering over the University of Phoenix Stadium, the home of the Arizona Cardinals. The line in purple at the 

bottom represents Glendale. The light brown at the top represents 

Peoria. The land in green represents the property purchased and 

owned by the Nation on unincorporated county land. The other 

land without color shading represents other unincorporated parcels, most of which are dedicated to agricultural uses at this time. 

The highway is State Route 101, a loop freeway that 

circumnavigates much of the greater Phoenix region. This development is projected to create 6,000 construction jobs and 3,000 permanent jobs, jobs desperately needed in Arizona. 

In addition to the direct employment benefits, the resort will create collateral economic benefits for the local businesses that will 

supply the goods and services needed to construct and operate the 

resort. The West Valley deserves to enjoy the benefits of tribal 

gaming that the East Valley has enjoyed for the past 10 years, 

from the very tribes who now selfishly seek to deny us the same 

economic benefits. 

I want to emphasize that from the beginning, the Tohono 

O’odham Nation has engaged in an open dialogue with State and 

local leaders, including myself, community groups, and constituents. The Nation has also been receptive to feedback, as demonstrated through the revised site plan for the project that reflects 

movement of the casino closer to 95th Avenue and Northern. They 

have also gone on record in support of the planned improvements 

to Northern Avenue, contrary to the intense statement in 

H.R. 2938. 

The day this project was announced, the leaders of the Tohono 

O’odham Nation met with me to inform me of their plans, as they 

did with many others. They made it clear to me that they were 

committed to work closely with me to address the concerns that I, 

my council, and my constituents may have. 

Since that day they have lived up to that commitment. They 

have participated in hundreds of community meetings. They have 

joined our local Chambers of Commerce. They have sponsored important community charities, and participated personally in local 

events. 

They have met with key potentially affected constituencies, including the Peoria Unified School District, to identify early on potential issues, and to work cooperatively to resolve those issues before an ounce of dirt has been turned. 

There are many in our local community who understand the benefits of the proposed project, and fully support it. And I have 

brought with me, and would like to submit, comments, written testimony from The Honorable Adolfo Gomez, owner of the nearby, excuse me, Mayor of the nearby City of Tolleson, and The Honorable 

Phil Lieberman, a 20-year veteran of the Glendale City Council. 

Each asked that I bring to you today a copy of their respective 

written testimony in support of the project, and in opposition to 

H.R. 2938. And I ask that both statements be included in the 

record of this hearing. 

Mr. YOUNG. Without objection. 

55 

Mr. BARRETT. Mr. Chairman, Honorable Members, H.R. 2938 

was introduced less than three weeks ago. The directors of the legislation did not consult with me, or my City Council, or with Mayor 

Gomez or his City Council, or with the West Valley community in 

general. 

While I very much appreciate the opportunity you have afforded 

me to testify today, I am but one voice among so many in the West 

Valley who support the Nation’s project. Therefore, I strongly urge 

that you reject this legislation, or at a minimum conduct a field 

hearing in West Valley before further consideration. Come out and 

see for yourselves where this property is located, and the troubles 

we are experiencing. Perhaps most importantly, come out and help 

promote community dialogue that will help move this project forward in a way that works for all of us. 

The picture the project’s opponents have been attempting to 

paint for two years is completely at odds with what I have witnessed. In every respect, I have found the Tohono O’odham people, 

their elected leadership, to be honest, respectful, responsible, and 

personally engaged in working to improve the West Valley communities. From my perspective, they are already good neighbors. 

I thank you again for giving me the opportunity to speak to the 

Subcommittee about this badly misguided legislation. I am happy 

to answer questions you may have. 

[The prepared statement of Mr. Barrett follows:] 

Statement of The Honorable Bob Barrett, Mayor, 

The City of Peoria, Arizona 

Chairman Young, Ranking Member Boren, and distinguished members of the 

Subcommittee on Indian and Alaska Native Affairs. My name is Bob Barrett, and 

I am the Mayor of the City of Peoria, Arizona. I want to thank you for the opportunity to testify this afternoon regarding H.R. 2938. If enacted, H.R. 2938 would 

amend the Tohono O’odham Nation’s land claim settlement statute, known as the 

Gila Bend Indian Reservation Lands Replacement Act, Public Law 99–503. 

Before I begin, I need to clarify that I am speaking before you today on my own 

behalf. I am not representing an official position of the Peoria City Council. I will 

clarify that point later in my testimony. Let us be clear from the outset about what 

H.R. 2938 really is: job-killing special interest legislation designed to protect existing Indian gaming operations and those who benefit from those operations. This bill 

is not about whether the Nation’s land lies within its aboriginal territory or about 

whether the proposed casino and resort complies with the tribal-state compact or 

other applicable laws. And it most certainly is not about ‘‘protecting’’ the local community. Rather, this bill represents an attempt to circumvent ongoing litigation 

challenging the Nation’s project which, so far, has not gone to the established gaming interests’ liking and has upheld the right of the Tohono O’odham Nation to develop its resort project. 

For those of you who are not familiar with the greater Phoenix metropolitan area, 

the ‘‘West Valley’’ refers to the communities west of the City of Phoenix. The Cities 

of Peoria and Glendale are the largest communities in the West Valley, bordering 

each other and Phoenix. The West Valley has experienced some of the fastest 

growth in Arizona, but it has also suffered significantly from the recession and faces 

continued economic fragility. 

The Nation’s West Valley land is located on a county island (meaning that the 

land is not within the jurisdiction of either Peoria or Glendale) between the City 

of Peoria and the City of Glendale. The border between our two cities lies along 

Northern Avenue, which can be seen on the map which follows: 

56 

In this map, you are looking north from a place roughly hovering over University 

of Phoenix Stadium, the home of the Arizona Cardinals. The land in purple represents incorporated City of Glendale. The land in light brown at the top represents 

the City of Peoria. The land in green represents property purchased and owned by 

the Tohono O’odham Nation, on unincorporated county land. The other land, without color shading, represents other unincorporated parcels, most of which is dedicated to agricultural uses at the moment. The highway on the west side of the map 

is State Route 101, which is a loop freeway which circumnavigates much of the 

Greater Phoenix Region in a shape roughly equivalent to a horseshoe. 

Because the Nation’s proposed resort facility would be located just across the 

street from a commercial center within the City of Peoria, the proposed development 

is very likely to provide a much-needed economic boost to Peoria and Glendale and 

the surrounding community. 

I want to emphasize that from the beginning, the Tohono O’odham Nation has engaged in open dialogue with state and local leaders—including myself—community 

groups and constituents. During these discussions the Nation’s leaders described 

their plans and the economic and social impact that this proposed project would 

have on the West Valley. The Nation has also been receptive to feedback as demonstrated through the revised site plan for the project that reflects movement of the 

casino closer to 95th Avenue and Northern. They have also gone on record in support of the planned improvements to Northern Avenue at the urging of the local 

community. 

This development is projected to create 6,000 construction jobs and 3, 000 permanent jobs—jobs desperately needed in Arizona, particularly in the construction industry. In addition to the direct employment benefits, the resort will create collateral economic development opportunities for the local businesses that will supply 

the goods and services needed to construct and operate the resort. The bottom line 

is that this proposed resort complex is a vital economic growth package for the West 

Valley, which neither the federal nor state government need expend one dime of taxpayer money to implement. It is designed to drive visitor traffic to an area that was 

specifically anticipated as a Sports and Entertainment District. 

The day this project was announced, the leaders of the Tohono O’odham Nation 

met with me to inform me of their plans. They described their intentions and the 

necessary federal review to come. And they made it clear to me that they were committed to work closely with me to address the concerns I, my Council and my constituents may have. I know they met with many other local officials to introduce 

them to the project, and I have to assume they made the same assurances to them 

that they made to me. 

Since that day, they have lived up to that commitment. They have participated 

in hundreds of community meetings. They have joined our local Chambers of Commerce. They have sponsored important community charities, and participated personally in local events. They have met with key, potentially affected constituencies, 

including the Peoria Unified School District, to identify early on potential issues, 

and to work cooperatively to resolve those before an ounce of dirt has been turned. 


70596.001.eps
57 

The Peoria City Council has not taken a formal position on this project. Why? We 

are engaged in extensive discussions with the Nation, and their engineering and architectural firms, regarding potential infrastructure requirements, transportation 

planning and other design matters. We are approaching those negotiations with an 

open mind, and remaining attentive to issues and complications that may arise. Our 

staff has visited the Nation’s gaming facilities to review their operations and to understand how the West Valley Resort may be similarly operated. 

To take a formal council position of either support or opposition may compromise 

the integrity of those discussions, and lead us to take conclusions that may not necessarily be in the best interest of our City. But speaking personally, I have every 

confidence that these matters will be reconciled successfully, and that after more 

formal consultations, support from my Council will be easy to come by. In my mind, 

Council neutrality is appropriate at this time to allow our city staff to conduct their 

work professionally and dispassionately. But I am very anxious for litigation to be 

concluded, and for this project to proceed so we can see many of our people get back 

to work. 

There are many in our local community who understand the benefits of the proposed project and fully support it. In fact the Honorable Adolfo Gamez, Mayor of 

the nearby City of Tolleson, asked that I bring to you today a copy of his written 

testimony in support of the project—and in opposition to H.R. 2938—and he and 

I both ask that it be included in the record of this hearing. As Mayor Gamez said 

more than a year ago when the established gaming interests first tried to stop this 

project through efforts to change state law, ‘‘I can’t see the logic of not bringing jobs 

to the West Valley.’’ Tolleson Backs Tribe’s Plan for Glendale Casino, The Arizona 

Republic (Feb. 20, 2010). I want to make sure that everyone here today understands 

that this project will provide a huge economic boost to our region. 

Mr. Chairman, Honorable Members of the Committee, H.R. 2938 was introduced 

less than three weeks ago. The drafters of the legislation did not consult with me 

or my City Council, or with Mayor Gamez or his City Council, or with the West Valley community in general. Not only were we not consulted regarding this legislation, 

but we strongly object to the fact that the legislation is being fast-tracked by scheduling a hearing with so little notice to the community that it will affect most. While 

I very much appreciate the opportunity you have afforded me to testify today, I am 

but one voice among so many in the West Valley who support the Nation’s development project. 

I strongly urge that before you move forward with this legislation—before you decide whether to kill off these 9,000 jobs and the ongoing economic growth opportunities for the West Valley—that the Subcommittee consider holding a field hearing in 

the West Valley. Come out and see for yourselves where this property is located. 

Come out and see for yourselves how our communities are suffering during these 

recessionary times. And come out and see for yourselves whether you think special 

interest legislation to protect the market share of a few is worth compromising the 

greater good of the many. 

Finally, I want to register my significant personal discomfort that parties involved 

in litigation against the Tohono O’odham Nation’s project now seek to effect a 

change in federal law in order to skew the outcome of that litigation. In my view, 

the Nation has been playing by the rules set out for it by Congress. If it should turn 

out that the courts disagree based on the law as it is currently written, then so be 

it. But for Congress now to amend the law is to change the rules in the middle of 

the game—this to me is fundamentally unfair, and frankly unworthy of our federal 

government. 

I thank you again for giving me an opportunity to speak to this Subcommittee 

about this legislation, which would unfairly prevent the Tohono O’odham Nation 

from pursuing its planned West Valley Casino/Resort development, would destroy 

9,000 new jobs for Peoria, Glendale and the rest of the West Valley, and would ensure that we do not benefit from the related economic growth and development opportunities that will be created by the Nation’s West Valley project. I do not think 

that the folks responsible for this legislation have heard the whole story, and they 

certainly have not heard from the many local officials and business leaders who 

strongly support this project. For all these reasons, I believe that H.R. 2938 is illadvised, and I hope that the Subcommittee will not recommend that this legislation 

become law. 

I am happy to answer any questions you may have. 

Mr. YOUNG. Thank you, sir. Now, Mr. Luja ́n. 

58 

Mr. LUJA ́ N. Thank you very much, Mr. Chairman. You are always looking after me, Mr. Chairman. 

I want to welcome one of my Governors from Zuni, as well, for 

being here, Governor Quetawki. It is always a pleasure, sir, to have 

you here, and members of the Council, as well as those we have 

had a chance to visit with today on educational initiatives on behalf of the Pueblo Zuni. 

Also our friends that are both with us, President Enos and 

Chairman Norris, thank you both for being here, as well. 

Governors, can you explain to the Committee what Proposition 

202 is, and what it means to the tribal communities? I know this 

is an area that we have had some conversation on, but just specifically with the importance, especially to Zuni, with what Proposition 

202 laid out as a foundation and moving-forward policy in Arizona? 

Mr. QUETAWKI. Can you repeat that again? 

Mr. LUJA ́ N. Governor, if you could just give us your perspective 

on the importance of Proposition 202, with moving the gaming compacts forward, which provided a platform for the Governor to enact 

some of those gaming compacts in Arizona. 

Mr. QUETAWKI. OK. Well, specifically for Zuni, these Proposition 

202 is very important to us, is that it allows the non-gaming tribes, 

the remote tribes like Zuni, being afforded that opportunity to get 

revenue sharing. The lease agreements, slot machine transfer 

agreements. And we utilize those machines, the revenues, to the 

best we can. 

And again, if this issue that we are talking about, H.R. 2938, 

goes into effect, the disastrous impacts it is going to create on those 

small tribes. 

Mr. LUJA ́ N. And President Enos, can you explain the gentleman’s 

agreement about gaming in the Phoenix area, and how the Tohono 

O’odham was involved in this and was the tribal party to the 

agreement? And when was that made specifically? 

Ms. ENOS. Certainly. Thank you for the question. I wouldn’t call 

it a gentleman’s agreement, because there were some gentlewomen 

that signed it, as well. 

Mr. LUJA ́ N. I am corrected, Madame President. 

Ms. ENOS. I am just teasing. But when the States, excuse me, 

when the tribes agreed to come together and negotiate with the 

State, we knew that in order to present and provide a unified front, 

that we had to come to an understanding amongst each other. That 

is in a written document, and it is the document that I had on the 

screen. It is included in part of my written testimony. It is called 

an agreement in principle. 

All the tribes that agreed that we would share our concerns and 

we would come together on a unified front, that was the critical 

part. Because we knew the racetracks and the beverage owners 

weren’t after slot machines; they were after Class III gaming. And 

we knew that in order to effectively, efficiently, and cleanly deal 

with the Governor and the State of Arizona, that we had to be together. We had to be united. 

So all the tribes signed that agreement. And the critical part of 

that was that if, in signing the document, if a tribe felt that it had 

to, had to take some actions that were inconsistent with the interests of the body of tribes, that it had a duty to disclose that to the 

59 

rest of us. Tohono O’odham signed that, yet they didn’t disclose to 

us that they were looking to buy land in the Phoenix area. 

Mr. LUJA ́ N. And Mr. Norris, pertaining to the agreement in principle, thee are two bullets there, in the therefore clause. One is bullet point four and one is bullet point five, that I believe that President Enos was just referring to, especially bullet point five. 

But bullet point four reads, ‘‘The tribal leaders’ first priority is 

to protect the interests, sovereignty, and right to self-determination 

of their individual Indian Nations. Nothing in this agreement shall 

be construed to impair their tribal leaders’ ability to protect the 

sovereign interests of their individual Indian Nations, or their ability to take any action inconsistent with the actions or positions of 

other tribal leaders.’’ 

Number five reads, ‘‘Tribal leaders will make a good-faith effort 

to notify other tribal leaders if they believe that they cannot abide 

by this agreement, or that they must take positions or actions inconsistent with those of other tribal leaders.’’ 

With that being said, Mr. Chairman, how has the tribe moved 

forward, under your leadership and under the previous Chairman 

as well, in this area, specific to those two bullets? 

Mr. NORRIS. Thank you for the question, Mr. Chairman and Mr. 

Luja ́n, members of the Committee. I have to respond to one thing 

that it wasn’t until President Enos’s testimony became public that 

I was aware, or even saw that particular agreement that you are 

referring to. I have not seen it until I have seen it in her testimony. 

And I also have to say that at the time that agreement was discussed, I was not privy to the conversations that typically would 

have been held in executive session by elected tribal leaders only 

to make those decisions. Although I was involved as an employee 

of then our current gaming operation, I was allowed to participate 

in the meetings to the extent that I, along with lawyers and lobbyists and non-elected persons, were excused from those meetings 

when the tribal leadership chose to have much more detailed conversations. Similar to what we do even today, when tribal leaders 

want to discuss issues amongst themselves. 

So in answer to your question, what I have to say, too, is that 

in 1992, what I do know is that in 1992, the State of Arizona and 

an attorney that represents one of the tribes that are in opposition 

were advised of the Nation’s acquisition of this property, and there 

was no disagreement amongst those representatives that the Nation could game on these after-acquired lands, in accordance with 

the current compact, with the compact at that time. 

And so based on the current terms of the compact, it is our position that, and much reference was made to the 50-mile clause in 

the Tucson market to Section [j] in the compact, it is that section 

that the Nation feels it has the authority to move forward and acquire this land into trust, and game on that land. Because the compact that my Nation’s leadership signed, along with the Governor 

at that time, provides for the Nation’s ability to game on after-acquired land, as long as that land has been acquired as the result 

of a land settlement, and it is a provision under our current compact. 

Mr. LUJA ́ N. Thank you, Mr. Chairman. 

Mr. YOUNG. Mr. Schweikert. 

60 

Mr. SCHWEIKERT. Thank you, Mr. Chairman. I still feel a little 

bit like an interloper. 

Mr. YOUNG. If you become an interloper, I will let you know. Go 

right ahead. 

Mr. SCHWEIKERT. I have the funny feeling, knowing how shy and 

retiring you are, you would, yes. 

Is it Mr. Barstow? 

Mr. BISTROW. Bistrow. 

Mr. SCHWEIKERT. Bistrow. And this is one, forgive me, I am just 

trying to also help put some things back into context. Have you, 

not only as the Attorney General’s Office, but also been working 

with the Governor of the State? 

Mr. BISTROW. Yes. We are on the, as far as I know, the Attorney 

General and the Governor are in sync on this issue. 

Mr. SCHWEIKERT. OK. I did not know if you have had conversations with her, because she has an interesting history of this area 

and this community. I believe this was substantially her legislative 

district when she was also on the Board of Supervisors, this area, 

and now obviously as Governor. 

But Jan, or Madame Governor, was actually the Whip in the 

Senate when I was the Whip in the House, and dealing with the 

first set of compacts. Just from a personal anecdotal standpoint, a 

lot of people don’t realize we were very close to having the votes 

to remove horse tracks, dog tracks, and the lottery, and go the 

other direction in IGRA. Which is saying we will be like Utah; we 

just won’t have it. And it was substantially because of the fear of 

this type of situation. 

President Enos, can I ask you to step back. Were you involved 

in the Prop 202 campaign? 

Ms. ENOS. Yes. I was an elected official at the time, and Salt 

River was involved in the whole process. And while I heard Chairman Norris say that he didn’t know about the agreement in principle, the agreement in principle was signed by Chairman Manuel, 

who was a chairman at the time, and Tohono O’odham was active 

in all phases of the Prop 202 campaign. And part of my written 

record, written testimony includes references to now-Chairman 

Norris making assertions about our unity, and about the tribes and 

Chairman Manual sticking together. 

And I would also acknowledge that the Tohono O’odham Nation 

contributed a large part of, a significant amount of the monies to 

finance that campaign, and was involved in the steering committee 

for the Arizona Indian Gaming Association developing those messages that we were giving to the voters and the State of Arizona. 

Mr. SCHWEIKERT. Mr. Chairman, Madame President, do you remember the discussions in the ads and all the brochures, about 

vote for this, it will help our rural tribes be able to move their allocations; but at the same time, it would also limit the number? And 

I don’t know why that is sort of burned into my memory, and I am 

trying to have someone else also confirm that piece of memory. 

Ms. ENOS. Absolutely. Because as I mentioned earlier, the coalition of 17 tribes, it was called the, it was the Initiative for Fairness 

I believe, something like that. But during that campaign, the monies that we all contributed together, including Tohono O’odham, we 

had television ads, we had bumper stickers. There were voter 

61 

guides, pamphlets that went out to the voters in Arizona to get 

them to vote for Proposition 202. 

Mr. SCHWEIKERT. OK. And Mr. Chairman, this one is for anyone 

that is on the Committee. Let us reach back to that 2002 campaign. What would have happened if the initiative that was I think 

primarily financed through some of the horse and dog tracks had 

been victorious? If it had the most votes, so we would have had 

Class III gaming at those establishments? Do I have anyone that 

is comfortable saying what would have happened to our existing 

compacts at that time? 

Ms. ENOS. Well, I am comfortable answering that question. 

Mr. SCHWEIKERT. Did we disclose to everyone you are a lawyer, 

also? 

Ms. ENOS. I am very proud of it, thank you. Honorable profession. 

[Laughter.] 

Mr. SCHWEIKERT. Oh, no. I think I may have hurt us with the 

Chairman. 

Ms. ENOS. You know, what would have happened, it is hard to 

go back and predict, and go back in time. But it certainly would 

have made things different. 

And I acknowledge what Chairman Norris just said, about him 

not knowing about our agreement in principle, and not being aware 

of it now. I guess the question that I would have is that, does that 

mean that you understand that the Tohono O’odham Nation made 

a promise then, and broke that promise to not only the other tribes 

in Arizona, but the voters in Arizona, and the Governor? 

I am sorry, what was the question? I am getting excited here. 

Mr. SCHWEIKERT. Well, it was just my, my fear is sort of the 

looping back, that if the racinos had passed, what that would have 

done to the compacts and the whole nature of Arizona. 

Ms. ENOS. Yes. Mr. Schweikert, part of the campaign, and this 

is what Governor Jane Hull in fact said in the press conference 

where she supported the compact the tribes had negotiated. She 

said many things, but one of them is she said this would keep, 

limit the number of casinos in the Phoenix metro area to seven, because that is what, that is what exists right now. 

And then-Attorney General Janet Napolitano also was supportive 

of Prop 202. And she said this will keep gaming out of our neighborhoods. So there were many supporters that aligned with the 17- 

tribe coalition in support of the Prop 202 campaign. 

And it is hard to say what would have happened. I know that 

Salt River would have objected strongly if Tohono had said look, 

folks, we are getting ready to purchase some land in the middle of 

metro Phoenix, or Glendale, or Peoria, wherever that is, in that 

area there. I know that it would have diametrically changed everything. 

Because not only in those negotiations among the tribes ourselves, we had to do a lot of give-and-take; the number of slot machines, the number of locations. Salt River already, and Gila River, 

gave up one casino, the right to have a casino. But Tohono maintained their right to have four casinos, and to have an additional 

one in Tucson, as part of those negotiations. 

62 

Mr. SCHWEIKERT. Mr. Chairman, thank you, Madame President. 

Thank you for your tolerance. Thank you, sir. 

Mr. YOUNG. Mr. Kildee. 

Mr. KILDEE. Mr. Chairman, I yield my time to Mr. Franks from 

Arizona. 

Mr. FRANKS. Thank you, sir, that is very kind. I appreciate that. 

Let me address the first question if I could to President Enos. As 

you know, President Enos, after Congress enacted the Indian Gaming Regulatory Act in 1988, referred to as IGRA here, it specifically 

required that for gambling or gaming to be allowed in the tribal 

areas, that there had to be a compact with the State and among 

the tribes. That was one of the fundamental predicates of the entire situation. 

As you know, Arizona enacted legislation that restricted gaming 

within the State to existing or contiguous reservation lands, and 

prohibited the Governor from concurring with any Federal decision 

to allow gaming on so-called after-acquired lands that were not 

contiguous to an existing reservation. Also, a complex background 

there. 

But with that background, you mentioned the written agreement 

among the tribes promising good faith and solidarity. I know that 

you have covered this so well, but would you reiterate, in the key 

areas, what you think the purpose of that agreement was? Ultimately, was it not to meet this requirement of IGRA, to create a 

compact to allow the gaming on the tribal lands? 

Ms. ENOS. Yes. 

Mr. FRANKS. And please feel free to elaborate. 

Ms. ENOS. Mr. Franks, yes, it was. And when the tribes—I have 

to explain the process that we underwent, undertook actually. 

The tribes met as a group, as a coalition. And we understood, the 

first thing the Governor said was limited gaming. Limited gaming. 

Otherwise the State is not going to talk to you about this; we are 

not going to negotiate with you. 

So the tribes, we began to negotiate amongst ourselves. And we 

knew that we couldn’t have as many machines as we wanted. We 

knew that we couldn’t have as many facilities as we wanted, because the State said limited gaming. 

And also, the requirements with IGRA, which was enacted in 

1988, were well in place, and we recognized that as a framework 

that we had to work with, with dealing with the State, with negotiating with the State. 

So after-acquired lands is clearly a restriction on the Governor 

to approve those compacts that have land that is after-acquired, 

presumably after the 1988, and I think the statute specifically says 

that. But you are correct, in lands that are not contiguous. 

The State of Arizona has a very strong interest against expanded 

gaming. Thus, the clearest answer I can give to you, to all of you 

here, the State of Arizona negotiated with the tribes in good faith 

and fair dealing, to limit gaming to then-existing lands, homelands. 

And it was our clear understanding, not only amongst each other, 

but with the Governor and with the voters of Arizona, but also 

with the Governor and the State. 

So IGRA, the way we looked at IGRA was that we all had to play 

by IGRA. And again, I go back to the point that Tohono O’odham 

63 

didn’t tell us, when we were negotiating amongst ourselves in 1999 

to 2002 and into the Prop 202 campaign, they did not tell us. Not 

once did they say we are thinking of buying land in the Phoenix 

metro area, and we are even thinking that it is going to be consistent and under IGRA. Nobody said that to us. They didn’t tell 

the State, they didn’t tell us. 

And again, it goes back to the very concept of fair dealing. It goes 

back to the very concept of keeping your promise. It goes back to 

the very basis on which the compact was signed by the State of 

Arizona and the tribes. Trust, reliance, and a promise. And they 

were not, they didn’t play along with that. 

Mr. FRANKS. Thank you, President Enos. I guess thee are two 

questions I would like to throw in here, and I will get it in here 

and let you answer them as you can. 

One is, if the compact should blow up, given the construct of 

IGRA, if the compact should blow up, does it not call into question 

the entire legality of some of the other reservation gaming that is 

occurring now? I mean, at this point, if the compact dissolved it 

would be in direct conflict with IGRA for there to be any gaming 

in Arizona. Is that correct? 

Ms. ENOS. Well, what would happen, in practical terms, if the 

Tohono O’odham Nation is permitted to game in Glendale, not only 

will the voters, the promises that the tribes and that we all made 

that no more casinos in the Phoenix area, no more than seven, that 

promise is violated. And that trust that we asked for from the voters of Arizona and the State is gone. 

It is almost like dealing with somebody, you have business dealings with somebody. You sit down at the table, and you want to 

work out a partnership of sorts. You put everything that you have 

on the table: This is what I am dealing with, these are my potentials, these are my negatives. Because you have an expectation that 

people are going to be truthful, and that the result will be what 

everybody understands. 

You can’t deal with another party, especially in a partnershiptype relationship, which is what this was, and crossing your fingers 

behind your back. You can’t do that. 

There is a provision in the Arizona Compact that says specifically if non-Indian interests get slot machines, get Class III gaming, then all bets are off. They call that the Poison Pill provision. 

And what it means is that if the racetracks are able to get slot 

machines, or the beverage owners, as they are asking for right 

now, then the tribes don’t have to provide any more revenue sharing, and we can build 20 casinos. But that makes the State of 

Arizona a gaming State, and everybody can have slot machines. 

Everybody. 

And that is what people mean when they say the compact could 

blow up here. Because we have achieved what, in a lot of our opinion, is a well-balanced agreement among not only the tribes, the 

cities, the counties, the State and the citizens of Arizona. That is 

what would be disrupted here. 

Mr. YOUNG. Your time is up. 

Mr. FRANKS. Thank you, Mr. Chairman. Thank you. Thank you 

all for being here. 

Mr. YOUNG. Mr. Eni. 

64 

Mr. GRIJALVA. Thank you, Mr. Chairman. If I may, Mr. Chairman, ask unanimous consent to enter into the record letters in opposition to the legislation, the Pascua Yaqui Tribe, San Carlos 

Apache Tribe. And also the map of the Arizona Indian Lands map, 

which shows O’odham Nation’s reservation in Gila Bend, entrusted 

forests within the claims of Salt River aboriginal territory, 71 letters of support from West Valley businesses and organizations, and 

a letter from Senator DeConcini to Secretary Salazar. 

Mr. YOUNG. I don’t object. I can’t understand it all, but I don’t 

object. 

Mr. GRIJALVA. It was pretty miserable reading after a while, but 

anyway. 

[Laughter.] 

Mr. GRIJALVA. Part of the discussion is about precedent, and I 

want to get a little bit. Because I understand—no, I don’t understand where the motivations and emotions are around, around the 

issue. 

But one, if I may ask Chief Deputy, one of the points that you 

testified is that in no way the drafters of this settlement act that 

is central, and the interpretation of this settlement act is central 

to the discussion in the ongoing process, what it could have meant 

to allow the Nation to acquire land within county islands. And that 

you are concerned that the Department of the Interior has interpreted the settlement to allow for this. 

Let me quote to you from the letter that I entered into the record 

from Senator DeConcini to the Secretary. ‘‘I also understand that 

some are now asserting that because the land is adjacent to existing incorporated areas, that it is somehow unsuitable to meet the 

purposes of the legislation. While our State’s population has grown 

significantly since the legislation, it is important to note that there 

were unincorporated lands adjacent to incorporated communities 

even then. For some now to interpret this legislation included an 

additional requirement that replacement lands be isolated, and 

thus its economic value diminished, is incorrect, both in terms of 

the letter of the law and in this Senator’s intent.’’ 

Would you care to comment on Senator DeConcini’s letter? 

Mr. BISTROW. I haven’t seen Senator DeConcini’s letter, but this 

is what I meant by a written statement. 

There was an exclusion under the Gila Bends Act, which basically said that that land cannot go into the reservation if it was 

within a, and I am paraphrasing, within a city or any town. 

Now, my view is that that meant within the geographical boundaries of a city or a town. I think that is the plain reading of that 

particular statute. I cannot imagine—— 

Mr. GRIJALVA. No. 

Mr. BISTROW. If I can continue. 

Mr. GRIJALVA. Well, I have limited time, with all due respect. I 

have five minutes. The point is that you haven’t read the letter, 

and you probably should. 

The next, other part of precedent is this. I think, you know, there 

has been comments, and I think the Governor made some good 

comments in his testimony about that nowhere in the Land Replacement Act does the O’odham Nation have the right to game on 

65 

its lands placed into trust under the Land Replacement Act, let 

alone outside aboriginal territory. I read that quote. 

The precedent issue for me continues to be a vivid one. The Zuni 

Pueblo has benefitted from several land acquisition statutes. None 

of those statutes, both in Arizona and in other trust decisions, none 

of those statutes have a provision authorizing gaming. 

So one can then conclude, on a precedent, that it is the position 

that it would be illegal for lands acquired under this kind of order, 

under these statutes; it would be illegal because no express language exists to prohibit it, or to allow it. 

The same as in any settlement issue. And this is I think that 

Pandora’s Box said all Nations should be concerned about; that the 

restrictions in H.R. 2938 was drafted without consultation to the 

Nation affected by it. That, for instance, there are complaints that 

some of the tribes did better off on the water settlement in Arizona 

than others. 

So to me, so the precedent would be would it be acceptable, then, 

to also amend let us say the Gila Rivers 2004 water rights settlement to reduce its water allocation, so that other—over the Gila 

Rivers’ objection, which would be immediate, because it would 

serve other Arizona tribes’ interests. 

The precedent issue continues to be one, Mr. Chairman. And 

while the settlement issue has to be, has to go through its process, 

this legislation I think is going to open up a box both of litigation, 

and inevitably, if the concern is about the effect on gaming in the 

long term, and what it did to the compact. 

And I don’t believe the settlement violates the compact, and that 

has already been, it is being litigated, this whole issue. It is in the 

process in the Department of the Interior and before the Commission. 

I would suggest that the prudent and the wise route to go is to 

let the process run its course, and let those decisions be made without jeopardizing not only the relations in the State among people, 

but more importantly, setting precedents that are going to come 

back and haunt us one after another. Legislation specific to a tribe, 

restricted to a tribe, in this case I think opens up a precedent on 

a settlement that anyone concerned about the sovereignty in Indian 

country should be concerned about the legislation. 

With that, let me thank you, Mr. Chairman, for this hearing, and 

suggest prudence, if anything else. Thank you. 

Mr. YOUNG. I want to thank the gentleman. Mr. Norris, do you 

have casinos? 

Mr. NORRIS. Mr. Chairman, members of the Committee, yes, we 

do. 

Mr. YOUNG. How many? 

Mr. NORRIS. We operate three. 

Mr. YOUNG. In Tucson? 

Mr. NORRIS. Two in the Tucson, and one on the furthest western 

end of the Tohono O’odham Nation, near Ajo, Arizona. 

Mr. YOUNG. Now, do you share, or do you lease slot machines 

and stuff from other tribes? 

Mr. NORRIS. We have leased machine rights from two other 

tribes. 

66 

Mr. YOUNG. Two other tribes. I am just curious about, if this new 

one was to be built, would you be under that same agreement? 

Mr. NORRIS. As far as the lease terms are concerned, or the compact? 

Mr. YOUNG. Would you be able to lease, I mean, more machines 

from other smaller tribes? 

Mr. NORRIS. Mr. Chairman, members of the Committee, the 

Tohono O’odham Nation is currently at its maximum capacity for 

machine rights under the current compact, and any rights we may 

have to lease additional machines. 

Mr. YOUNG. So how would you put machines in a new casino? 

Mr. NORRIS. We have some rights to machines that we have not 

put into play at this point. 

Mr. YOUNG. So the three are not fully occupied. 

Mr. NORRIS. Right. 

Mr. YOUNG. OK. Well, I want to thank the panel. I think you 

have done well. And we are going to hear a lot from all the members of this Committee and other interested parties. 

I do have the agreement in principle signed by the Tejon Tribe 

in 2000, I guess it was 2000, and all the other ones. I am interested 

in when it was signed. We have one in 2000, one in 1999, is that 

the way it is? Ninety-nine and 2000. We have only one tribe that 

didn’t sign; that was the Prescott Tribe? Yes, that is the one that 

didn’t sign out of all the tribes. 

I want to thank you all. 

Mr. LUJA ́ N. Mr. Chairman? Mr. Chairman. 

Mr. YOUNG. Mr. Luja ́n, yes. He has a question. 

Mr. LUJA ́ N. Thank you, Mr. Chairman. Mr. Bistrow, I guess one 

question that is on my mind, based on the conversation that we 

had here, based on the compacts and the mentioning of Phoenix, 

and not having the compact in front of me. 

Is Phoenix mentioned in the compact specifically? 

Mr. BISTROW. Not specifically, not specifically I think in the 

sense that you are saying it. Basically, it is our view that this 

promise has remained during the campaign that there would be no 

new casinos in the Phoenix area. There were campaigns that were 

waged against Prop 201, the racing initiative. 

Indeed, the Tohono O’odham Nation campaigned against that 

particular proposition on the basis of—— 

Mr. YOUNG. Will the gentleman yield? This is Prop 202. ‘‘Does 

Proposition 202 limit the number of tribal casinos in Arizona? The 

answer is yes. In fact, Proposition 202 reduces the number of authorized gaming facilities on tribal land, and limits the number and 

proximity of facilities each tribe may operate under Proposition 

202. There will be no new additional facilities authorized in Phoenix.’’ 

Mr. BISTROW. OK. Mr. Chairman—— 

Mr. YOUNG. But it does say one in Tucson. 

Mr. LUJA ́ N. And Mr. Chairman, that was the followup question. 

It sounds like it is not explicitly listed in the compact, but it was 

included in Proposition 202. 

Mr. BISTROW. That is right, in the campaign circulars, in all of 

the ad campaigns. Many of those ad campaigns, as a matter of fact, 

in the testimony before the Arizona State Senate, those statements 

67 

were made by the Indian tribes, as well. So it is clearly understood 

in Arizona that that was one of the terms of the compact. 

Mr. YOUNG. Madame President? 

Ms. ENOS. I would like to respond to that question. The compact 

specifically lists casino facilities, and it lists specifically seven 

casinos. And it lists, actually there is a table that shows the number of facilities that each tribe is allowed to have under the compact. 

And in the Phoenix metropolitan area there are seven casinos in 

the compact that are allowed for the seven, for the tribes in the 

Phoenix metro area. 

But I really wanted to respond to Congressman Grijalva’s, I 

think it was a question, and I didn’t hear a response to it. But he 

is talking about precedent. 

Congress clearly has done land settlements specifically. We don’t 

believe that this was a land settlement, for one thing. But for instance, the Narragansett land claim was settled, and Congress 

went back and amended it and precluded gaming on that. The Colorado River specifically, reservation, precluded gaming. The 

Mashantucket Pequot situation also, Congress specifically precluded gaming. Congressman Grijalva’s own measure that he introduced on the Cocopah lands specifically precludes gaming. 

Mr. LUJA ́ N. And President Enos, if I may, because we are running out of time. 

Ms. ENOS. Sure. 

Mr. LUJA ́ N. Chairman Norris, quickly, and then I will yield to 

Congressman Grijalva, just to respond there quickly. 

Mr. NORRIS. Thank you very much, Congressman and Mr. Chairman. I just wanted to quickly say that the Tohono O’odham Nation’s compact that we have currently signed with the State of 

Arizona authorizes the Nation to game on after-acquired lands. 

That is the provision that is already in there. 

And the provision is that we can game on after-acquired land as 

long as that land was acquired as a result of a land settlement. 

Contrary to President Enos’s comment, and based on the decisions by the Department of the Interior, the Gila Bend Indian Land 

Replacement Act is land settlement; it is the settlement of land of 

almost 10,000 acres that was totally destroyed by the U.S. Government. 

I am not an attorney, sir. I would like, if possible, my attorney, 

who is sitting with me, to clarify certain provisions under the compact. 

Mr. LUJA ́ N. If I may, Chairman Norris, if we could ask him to 

submit that in writing to the record, as well. And I will yield the 

remaining time to Congressman Grijalva. 

Mr. GRIJALVA. I think, to the point that was made regarding 

other land settlements that have the prohibition, the two that I 

worked on have been in cooperation and consultation with the 

tribes. 

We have an existing settlement here. We have a piece of legislation that undoes that settlement. And that is the fundamental difference. 

68 

The fact that gaming is central to the debate doesn’t take away 

the, doesn’t take away my concern about the legal precedent that 

is being set here. With that, I yield back. 

Mr. YOUNG. I just want to thank the panel again, and appreciate 

your patience. It has been a good two hours, a little more than two 

hours. So thank you very much. This hearing is adjourned. 

[Whereupon, at 4:56 p.m., the Subcommittee was adjourned.] 

[Additional material submitted for the record follows:] 

The documents listed below have been retained in the 

Committee’s official files. 

• Franks, Hon. Trent, a Representative in Congress from the 

State of Arizona 

Æ Brewer, Hon. Janice K., Governor, State of Arizona, Letter 

submitted for the record in support of H.R. 2938 

Æ Tobin, Hon. Andy, Speaker, Arizona House of Representatives, Letter submitted for the record in support of 

H.R. 2938 

• Grijalva, Hon. Rau ́l M., a Representative in Congress from the 

State of Arizona 

Æ 71 letters in opposition from other tribes 

Æ Map of the Arizona Indian Land Areas Judicially Established in 1978 

• Ga ́mez, Hon. Adolfo, Mayor, City of Tolleson, Arizona, Statement submitted for the record by Hon. Robert Barrett, Mayor, 

City of Peoria, Arizona 

• Lieberman, Phil, Council Member, City of Glendale, Arizona, 

Statement submitted for the record by Hon. Robert Barrett, 

Mayor, City of Peoria, Arizona 

• Scruggs, Elaine, Mayor, City of Glenndale, Arizona, including 

statements of Vice Mayor Steve Frate and City Council Members Joyce Clark, Mannu Martinez, and Yvonne Knaack, Statement submitted for the record--116 pages • Smith, Diane, Owner-Founder, Marathon Development, Statement submitted for the record • Tohono O’Odham Nation of Arizona, Supplemental testimony 

97 pages • Tovar, Hon. Anna, Arizona State Legislature, Statement 

submitted for the record 

Æ