The U.S. Senate Indian Affairs Committee has passed a bill that would block a new casino already under construction next to Glendale. Robert Clinton, a Foundation Professor of Law at Arizona State University’s Sandra Day O’Connor College of Law, will give us an update on the latest legal wrangling regarding the casino.
TED SIMONS: Coming up next on "Arizona Horizon," an update on the controversial tribal casino being built near Glendale. We'll hear about a new project that connects nonprofits with funding sources. And it's national pet week. We'll discuss responsible pet ownership. Those stories next on "Arizona Horizon."
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TED SIMONS: Good evening and welcome to "Arizona Horizon." I'm Ted Simons. The U.S. Senate Indian affairs committee recently passed a bill that would block a new casino already under construction next to Glendale. For an update on the casino's legal status we're joined by Robert Clinton, a foundation professor at ASU's Sandra Day O'Connor college of law. Good to have you here.
ROBERT CLINTON: Thank you, great to be here.
TED SIMONS: What is the status of the casino?
ROBERT CLINTON: The casino is in a complex situation. Litigation going on through two rounds with an appeal presenting pending in the United States court of appeals, 9th circuit, about whether the construction well not so much the construction, the gaming in the casino is lawful. Additionally there has been attempts of legislative amendment of the underlying act of the basis of the claim that they can build the casino. That statute passed out of the Indian affairs committee April 29th. It is awaiting full Senate action. There is a similar bill pending in the House of Representatives that has a number of supporters, including four members of the Arizona delegation. So, it's basically a race to see whether the casino is first constructed and opens, or whether Congress acts, or whether the courts act.
TED SIMONS: Now, the tribe does have legal go-ahead to build, correct?
ROBERT CLINTON: They don't need legal go-ahead to build.
TED SIMONS: Okay because it's their property.
ROBERT CLINTON: It's their property. They own it. Land taken in trust pursuant to the first round of litigation. And that just means they can build whatever they want on it. It doesn't mean they can open it and this doesn't mean they can game on it. Limitation is on operating the gaming facility.
TED SIMONS: Exactly. I want to get to that in a second. I heard the governor and state gaming director say we're not going to let you open the bill. But before we get there, you mention the two bills in the house and Senate. John McCain says that what the tribe is doing, the Tohono tribe, violating the intent of the Indian gaming act. He said he should know, he helped write the act. Valid argument.
ROBERT CLINTON: He definitely was involved in the drafting. Section 20 of the act, designed to prevent gaming on Indian lands acquired after the effective date of the act, 1988. This land definitely acquired after that date. A number of structured exceptions in that section, which, of course, he helped write. What the tribe is claiming is that one of the exceptions, settlement of an Indian land claim exception, covers their situation. Obviously, senator McCain thinks it doesn't cover that situation. He has been joined by senator flake in that respect, also cosponsoring the bill. I think it is a very interesting question whether that section does or does not cover the situation. Right now, Judge Campbell of the district court has ruled that it does cover the situation, and that the gaming therefore would be lawful. That is part of what is on appeal to the court of appeals of the 9th circuit.
TED SIMONS: All happening because the tribe got money as part of a settlement for tribal land that was flooded due to a dam.
ROBERT CLINTON: Precisely. That settlement was way back in the 1980s, and they were authorized to buy at least three parcels. This is the last parcel.
TED SIMONS: State of Arizona says that the tribe committed fraud because they did not tell of their casino plans when the compact was being negotiated. Is that valid?
ROBERT CLINTON: Oftentimes fraud happens because of misrepresentation. Not failure to disclose. There is no apparent misrepresentation that TO made that Arizona seems to be arguing for. And usually we don't find fraud where there is just a failure to disclose. And this is a failure to disclose. Furthermore, the fact that T.O. had the ability to buy a parcel of land was public knowledge. It was part of a public act. The fact that Arizona didn't discover that they might, in fact, buy such land, is in part Arizona's problem. Also, the compacts themselves when you look at them, just say that the gaming has to be on Indian land, and this is Indian land. And that it has to be in compliance with the Indian gaming regulatory act, and if it is land acquired after the effective date, it has to be in conformity with section 20 I was talking about. Judge Campbell has ruled that it is in conformity with section 20, though I have some doubts about that.
TED SIMONS: I was going to say, it sounds that you are not quite convinced that Judge Campbell made the right ruling.
ROBERT CLINTON: The way section 20 reads, if you look at the statute, it would seem that it is a settlement of land claim. But there have been regulations under that statute that the gaming commission has promulgated and they go way back. Those regulations define what the settlement of land claim is. They basically require sort of a number of things, but one of them being that the title to the land or possession of the land had to have been at issue in the dispute and that the opposing party had to have claimed an adverse title or possession. United States was never claiming title or possession of that land.
TED SIMONS: Right.
ROBERT CLINTON: Judge Campbell's ruling ignored the second part of the definition. He just looked at the first part. By looking only at the first part he came to the conclusion that possession was an issue.
TED SIMONS: Is the state arguing the wrong things?
ROBERT CLINTON: The state has been arguing the wrong things since this litigation started. They first argued that the land couldn't be taken in trust when the act mandated the secretary to take it in trust - in other words there was no discretion, he had to take it in trust. Having the state argue that it shouldn't lawfully be taken in trust, now they're focusing on fraud and misrepresentation in the negotiations, and as I look at the prop 202 literature, the prop 202 statements, everything seems to be consistent with what T.O. is saying. The point being that what they should be focusing on and should have been from the beginning is whether or not this is within the exception in section 20, which I've always thought would determine whether this casino ever opened.
TED SIMONS: With that in mind, governor said that the casino will not open, state gaming director says that the casino will not open. Can the state keep this thing from opening?
ROBERT CLINTON: The state has an obligation to perform its duties under the existing compact. Some of those duties include reviewing tribal licensing decisions. If the state breaches that compact, a number of things can happen. Arbitration can happen. The flow of money to the state from the casinos, including the flow from T.O.'s existing casinos can be disrupted. A number of adverse consequences can occur if the state follows through with its threat. So, I kind of think it is a bit of an idle threat if T.O. wins the litigation.
TED SIMONS: But, If the Tohono O'odham, if they open this casino, critics argue it blows the gaming compact wide open and all things are open for renegotiation. Is that valid?
ROBERT CLINTON: Not at all.
TED SIMONS: Not at all.
ROBERT CLINTON: Not at all. This is a unique situation related to a unique land claim settlement that probably, if judge Campbell's interpretation of the settlement of the land claim is accepted, brings this case within a very narrow exception, there would be no other situation like it that I could imagine in the state, and its inconformity if you accept judge Campbell's interpretation with the compacts.
TED SIMONS: If the state somehow prohibits the tribe from opening the casino, can they sue for damages? Are we going to start paying for gambling losses here, essentially?
ROBERT CLINTON: Essentially, preventing the casino from opening, at most creates a kind of speculative damage.You don't know what the damages would have been.
I would be very surprised if the state would be on the hook for those kinds of damages and I don't think there's a risk.
TED SIMONS: On a scale from 1 to 10, zero meaning it ain't opening, 10 no doubt it is opening, where do we stand?
ROBERT CLINTON: Before the district court, I would have said four. After the district court ruling, I would say a 6 but it's not a slam dunk.
TED SIMONS: It's very close to five on both sides.
TED SIMONS: Thank you for being here.
ROBERT CLINTON: Nice to be here. Thank you for having me.
Robert Clinton:Foundation Professor of Law, Sandra Day O'Connor College of Law at Arizona State University;