Gov. J. Fife Symington III Has Conducted A Brutally Unfair Attack Against The Tohono O'odham And Other Impoverished Arizona Tribes, Who Are Trying To Better Their Miserable Lot Through Casino Gambling.
By D.A. Barber
FOR THE NATION'S 554 Indian tribes, it started when President Ronald Reagan signed the 1988 Indian Gaming Regulatory Act (IGRA), giving the go-ahead for tribes to develop casinos. For Arizona, it started in 1992 when Gov. J. Fife Symington III refused--unsuccessfully--to negotiate any compacts for Indian gaming.
Since that time the State of Arizona has been systematically testing the legal waters for perceived weaknesses in the Indian gaming compacts statewide, to see which tribe blinks, and which legal battles can be won before full-scale war was declared.
After five years of losing skirmishes, the state has finally declared that war, targeting Arizona's largest Indian-gaming nation, the Tohono O'odham.
Why, precisely, the state is so determined to squelch Indian gaming in the face of voter approval is an open question.
"What bothers me is the passion with which the state seems to be doing this," says Jacob Coin, director of the Arizona Indian Gaming Association. "Every week something new comes up, and that speaks more of the issue of control."
Why the state declared war on the Tohono O'odham in particular is a bit clearer.
"We're the first, and if they can take us, they're going to be able to take everyone else," says Ned Norris, casino manager at the tribe's Desert Diamond Casino.
WHEN THE CONCEPT of reservation gaming was given the go-ahead, it was viewed by many tribes as a way to jump-start tribal economies and provide future self-sufficiency. After all, in the 1980s, average household income had fallen 5 percent for Native Americans while all other ethnic groups rose. The average annual income on reservations was less than $5,000. "You can make a stand, pro or against, as to whether gaming is a good, clean type of industry, but what it has done is given tribes an economic tool to be self-sufficient and economically stable," notes Norm Bejody, executive director of the Arizona American Indian Chamber of Commerce.
The Indian Gaming Regulatory Act was signed in 1988 after the Supreme Court legalized gaming on reservations in 1987. The IGRA allows tribes to operate casinos as long as gaming--such as a lottery--is legal in their state. The law required tribes to negotiate the details of their operations with the states' governors.
With the federal IGRA law behind them, reservation casinos mushroomed across the nation in the late 1980s and early 1990s. Many Arizona tribes got into the act. But the law required the tribes to sign agreements with each state, and when Symington refused to negotiate with the Indians in 1992, the Tohono O'odham led the battle to force the issue, and a federal mediator backed the tribes.
It was only when Interior Secretary Bruce Babbitt said he would approve Las Vegas-style casinos, that Symington, saying he was doing so under duress, signed the compacts with 16 Arizona tribes. But he restricted the agreements to slot machines only. After the feds dragged Symington kicking and screaming to the negotiating table, the Governor fired the state's first shot at controlling the scope of Indian gaming by signing a March 1993 law banning casino-style gaming.
By June 1993 the Tohono O'odham had one of the state's first gaming compacts signed by the Governor. Since then, Fife appears to have been rather miffed at the tribe and its Desert Diamond Casino, which opened in October 1993.
OF THE STATE'S 21 tribes, 16 signed agreements, and of the remaining five tribes, only one--the Salt River Pima-Maricopa tribe--showed any additional interest in gaming. The tribe waited to study the issue. But when, in 1995, they were ready to ante-up and announced their readiness to sign a compact to build a casino near the lucrative Scottsdale market, Symington refused.
It was then Symington made his infamously quirky statement that he would not only not negotiate a gaming compact with Salt River, but he would not renew existing compacts with the 16 tribes whoose agreements run out in 2003. It's a neat trick, considering even if Symington makes it through his May court dates concerning those 23 felony counts he's facing, he'll be out of office in 2003 anyway.
To prop-up the claim he needn't sign any more Indian gaming compacts, Symington has touted an August 1994 decision by the Ninth U.S. Circuit Court of Appeals he believes gives him the power to just say no. But that court decision--the Rumsey decision--has no foundation in Arizona, the tribes' attorneys argue, because our state, unlike California, already allows Indian gaming.
As the state entered 1995, the Governor appointed Gary Husk director of the Arizona Department of Gaming, a move many tribes have since criticized.
"When Husk came in it seemed that his marching orders were to do everything he could to discredit and create questions in the public's mind that Indian gaming
was bad," says Ned Norris, manager of Desert Diamond Casino.
Though Husk says he's "a big supporter of Indian gaming," Tim Wapato, executive director of the Washington, D.C.,-based National Indian Gaming Association, has his doubts. "I think Gary Husk has crossed over the line," Wapato says. "He's picked up the political rhetoric from the Governor, and that's a no-no for a regulator, and he knows it."
In November 1995 the Salt River tribe filed suit seeking a federal injunction to force a compact. The tribe was also instrumental in placing on the ballot Prop 201, which would take the issue of Indian gaming directly to the voters in November 1996.
MEANWHILE, THE STATE launched a well-orchestrated attack against Indian gaming on several other fronts.
In February 1996 the Arizona State Gaming Department targeted both the Tohono O'odham and San Carlos Apache tribes, accusing them of owing casino gaming fees to the state--some $177,000, $92,000 of which were allegedly owed by the Tohono O'odham from Desert Diamond Casino. Under the original state gaming compacts, all tribes were to pay $500 per slot machine for the first two years of operation to reimburse the state for enforcement activities. But the two years were up, and at issue was whether the fee remained the same, or whether a new figure was to be negotiated.
What complicated matters was the fact that the state refunds some of those fees based on what it actually spent on enforcement, so the tribes had simply deducted the amounts normally reimbursed, rather then waiting for the slow refund process.
"The state was reimbursing us, so obviously it wasn't costing them $500 per machine annually to do what they needed to do as far as oversight and compliance reviews," says Desert Diamond's Norris. Based on actual costs, Norris figured the real costs were $258 per machine. The San Carlos tribe paid the bill. The O'odham said no.
The Tohono O'odham, along with six other tribes, had been trying to negotiate with the state since March 1995 for a new fee structure. But the state refused any dialogue, even with a federal arbitrator present.
When the Tohono O'odham pressed the state to negotiate with the feds present, the State Department of Gaming threatened litigation. For the Tohono O'odham, this was typical of the state's vendetta against the tribe. Even more telling was that the threat was apparently coming from a higher source. In a June 1996 letter to the Tohono O'odham, Husk wrote: "I have been directed to inform you the state will not arbitrate this issue.... Rather the state is prepared to proceed to federal court in the event the matter can not be resolved."
So, how do you resolve an issue if the state won't negotiate?
THE WHOLE ISSUE of just how much revenue Indian gaming was generating, and what it was being used for, had now received the spotlight. The numbers are confidential, but the results are evident. Many tribes have used revenues to improve living standards and supplement government-funded programs in social services, healthcare and education. Tom Sweeny, the Bureau of Indian Affairs (BIA) spokesperson in Washington, says, "There's a great misunderstanding in what gaming has and has not done for the tribes." He notes that since the 1970s, funding for the tribes through the BIA has steadily declined, and though gaming has been "extraordinarily successful" as a short-term enterprise, it's no substitute for federal funding--because of the possibility the bottom will eventually fall out of gaming.
But Janet Hana, acting budget officer at the Phoenix BIA office, points out that "every little bit helps."
"Its absolutely helping reservations," says Charlotte Hrncir, at the federal National Indian Gaming Commission in Washington. She's seen first-hand improvements at the Gila River, Ak-Chin and Fort McDowell reservations. On the Tohono O'odham Reservation, the estimated $60 million a year in gaming revenue has allowed the tribe to double college scholarships from $6 to $12 million a year; plan a $14-million nursing home; plan a $2-million judicial complex; and pump another $2 million into the tribal police.
"The money has also created a necessary pool of funds." says Bejody, at the Indian Chamber of Commerce. "It's allowed us to do battle on a white man's battlefield--the legal system."
What irks the powers-that-be who oppose Indian gaming is that the original compacts with the state contain a confidentiality clause which prohibits the State Gaming Department from disclosing any financial information concerning the tribes. "If there's money in the cookie jar, everybody's going to put their hands in it," notes Fred Synder, director of the North American Native American Indian Trade and Information Center in Tucson. "They want to know how much is in there so they can get whatever share they think they can get."
On this issue, the tribes saw the cavalry coming very early on, and, with the help of Senate Minority Leader Peter Goudinoff, D-Tucson, introduced Senate Bill 1361, which would force the state to honor confidentiality provisions in the compacts Symington signed.
But then, something unexpected happened. The Arizona Newspaper Association, led by the Arizona Republic and The Arizona Daily Star, lobbied to oppose the measure. The newspapers had been trying to squeeze the state to allow access to the state's gaming records. A week later the Senate Commerce and Economic Development Committee rejected SB 1361, never allowing it a full floor vote.
Yet, the confidentiality clause still stands on its own within the tribes' legal compacts with the state. Though the state fought the suit, state Gaming Director Husk says, "With a multi-million-dollar cash industry of this nature, the public needs to know a certain amount of what's going on."
IT WAS THE following month, March 1996, that Symington's obsession with attacking Indian gaming got a shot in the arm.
The U.S. Supreme Court, in a 5-4 ruling, struck down a key provision in the 1988 Indian Gaming Regulation Act which allowed the federal courts to oversee state/tribe gaming negotiations. When Congress had passed the original 1988 law, it forced states to negotiate with tribes in good faith, or face a federal lawsuit. But the Supreme Court ruling--the Seminole decision--struck this provision of the law as unconstitutional.
It was this provision the Salt River tribe was banking on to force Symington to finally sign a compact with the tribe. The state was hoping, because of this ruling, the court would dismiss the Salt River tribe's lawsuit. But with the passage of Prop 201, the subject became moot.
What should have been the end of this jockeying between the state and the Salt River tribe came in November 1996, when state voters passed Prop 201 by a 64-36 percent margin. The proposition strongly supports Indian gaming and forces the state to sign any gaming compact within 30 days of the formal request. Prop 201 basically ordered the Governor to sign the standard compact with the Salt River Indian Community. "The people spoke loud and clear in their vote," notes Wapato at the National Indian Gaming Association.
Knowing Prop 201 was scheduled to go into effect in July, the state, and those opposing gaming, didn't hesitate to act to beat the deadline.
First, in December, the state sued to close Desert Diamond Casino, claiming an October inspection found more than 400 violations of the compact. In the lawsuit the state is also demanding internal financial information from the casino operation, a move that violates state compacts insuring confidentiality.
According to State Gaming Director Husk, Symington knew nothing of the lawsuit until it was filed. "The decision to file was one that I made and then advised the Governor it was going to be done," Husk claims.
"I find that hard to believe," says Ned Norris at Desert Diamond. "I believe this whole thing is politically motivated."
What bothers him, Norris says, is that the media knew about the lawsuit before the Tohono O'odham, a tactic the state has been using for years.
"That's pretty regular as to how they've been operating, and we see that as an attempt by the Governor's Office to try this whole issue in the media," says Norris. "My read on that is it's an attempt to divert some attention away from his own personal problems."
Next, the Gaming Department changed the way it conducts slot-machine accounting. In January the state claimed the Gila River and Ak-Chin Indian communities had too many gambling machines. The tribes--which have filed suit against the state on this matter--say it's another move to test the waters and renege on state compacts. What's at issue is how the state counts the newer, multi-user slot machines. "We count them as five, they count it as one," Husk notes.
Previously, the machines were counted as single units, but now the state counts them as several machines. The Gaming Department's compacts limit the number of machines a tribe can operate based on the population of the particular Indian community. With the new accounting process, virtually every tribe would have to give up some slot machines.
"We don't necessary disagree with the tribes' position," Husk says. "But until the court tells me those five-position machines are only one, I run the risk of exceeding the limitations of the compacts."
THEN CAME PROBABLY the most blatant disregard for the tribes, as well as Arizona voters--a double-barreled attack against Prop 201 and the Salt River tribe. In January Glendale Republican Sen. Scott Bundgaard filed a bill that would overturn voter-approved Prop 201. The most immediate effect of his proposal would be to block gaming by the Salt River tribe. To hedge the bet, Paula and Alan Sears--who are related to Symington's chief of staff--filed a personal lawsuit to block the Salt River compact, thus forcing the Arizona Supreme Court to bar the state from signing any new agreements until the case is settled. The Sears' lawsuit could easily tie up the issue in court for years--despite the outcome of Sen. Bundgaard's legislation--while putting enforcement of Prop 201 on hold until a ruling.
This past March the Arizona Supreme Court questioned whether Symington's stance on the Salt River tribe's lawsuit over the request for the Scottsdale casino would "frustrate the will of the voters." In that case the court did not indicate how or when it would rule. By then it appeared the state was willing to sign a compact with Salt River--but not for a Scottsdale location, and with some regulatory tweaking in the compact.
"Our position is that we asked for the same compact as the 16 compacts that are already in place," says Salt River spokesperson, Janet Johnson. "In negotiating those 16 compacts, location was never an issue, and shouldn't be now."
Husk doesn't agree. "Location has gotten a lot of attention, and the Governor wants to weigh in on where they place the casino and make sure it's not close to Arizona State University," he says. "The state also seeks to redefine or clarify some of the regulatory issues we've found to be ineffective."
It was also last month that a federal judge refused to dismiss the state lawsuit against Desert Diamond Casino. The court ruled the Tohono O'odham Gaming Authority could not enter the case, since it wasn't named in the suit against the O'odham Nation.
Next Thursday (April 24) in Tucson, U.S. District Court Judge Frank Zapata will hear the state's second request to temporarily close Desert Diamond. This may be Symington's last stand in his broadly waged war on Indian gaming. In the past weeks most of the state's attacks on the Indians have gone down in flames:
The suit by the Arizona Newspaper Association over disclosure was thrown out;
Bundgaard's bill to gut Prop 201 was defeated in committee;
Good citizens Paula and Alan Sears (still clutching at their lawsuit to block Salt River) were politely shown the exit at the Arizona Supreme Court. No doubt Symington sent a car.
BUT WHAT STILL perplexes most observers is why Symington has been so relentless in his attack on Indian gaming.
"We're not part of the Nine-Four inner circle, so we really don't know what's happening," says Coin at the Arizona Indian Gaming Association. Gay Kingman, spokesperson for the National Indian Gaming Association, thinks the whole attack is "outrageous."
"Being from Washington, D.C., and working there, I know nothing happens without something in the background triggering it."
"To us, it points out that he (Symington) just doesn't want Indians to have gaming," says the National Indian Gaming Association's Wapato. "We believe that's a racist position."
Critics complain Arizona's attack on Desert Diamond is one of the most aggressive assaults on any U.S. Indian casino. Even though most of the 400 allegations against the Tohono O'odham operation allege procedural violations, the shotgun approach of alleging so many violations seems to be an attempt to see what sticks.
"We've been strong in standing our ground against their dictatorship, and if they're able to successfully prove any of the allegations, they'll use that as a basis to go after the other casinos," says Desert Diamond's Norris.
If the state succeeds in closing down the casino, it would leave some 800 people unemployed--75 percent of them Tohono O'odham--and cut off a $60-million annual revenue source. It's a revenue source that has allowed not only the O'odham, but other tribes with casino money, to fight legal battles with the state on a level playing field in the courts.
And while the state is waiting for its day in court, Gaming Director Husk actually staged a press conference to advise gamblers not to go to Desert Diamond--a move the O'odham described in court papers as a ploy to "create the impression of a crisis in the press and destroy the casino's reputation, no matter what the outcome of the court case."
In the meantime, the tribes are all looking towards 2003, when the gaming compacts run out. Many doubt that 2003 will pass without some alterations in those compacts--possibly with the dismantling of reservation gaming altogether.
"At some point the state or feds are going to pull the plug on Indian gaming," notes a pessimistic Bejody at the Arizona Indian Chamber of Commerce. "They've never given us anything, they've always taken from us."
Photos by Domenic Oldershaw and Sean Justice
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