PHOENIX (CN) - The Tohono O'odham Nation sued Arizona on Monday, for refusing to certify tribal employees in a last-ditch effort to stop the tribe from opening a new casino.
The O'odham claim Gov. Doug Ducey, Attorney General Mark Brnovich, and Gaming Director Daniel Bergin are violating the Indian Gaming Regulatory Act and the Supremacy Clause of the Constitution.
The Tohono O'odham (Desert People), formerly known as Papago, have a 3 million acre main reservation west of Tucson. There are more than 25,000 tribal members, though less than half live on the main reservation, which, among other things, is home to the Kitt Peak astronomical observatory. The O'odham, whose pre-Contact enemies were the Apaches, or O'op (Enemies), are the only large Native American tribe that never was at war with the U.S. government, and never were forced off their traditional homeland.
Arizona has fought the tribe since it announced its plans for the casino in 2009. The $400 million casino, already under construction in Glendale, will employ more than 1,000 people, the O'odham say.
In its lawsuit, the tribe disputes Attorney General Bergin's claim that state law allows the Arizona Department of Gaming (ADG) to block the casino by refusing to certify vendors or employees or to approve the facility.
"They don't want to certify any of the work," tribal Chairman Edward Manuel told the Arizona Daily Star. "They don't even want to inspect the facility to certify."
"Defendants assert that ADG has state-law authority to decide that the Nation has engaged in 'disqualifying conduct' that 'nullif[ies]' the Nation's federal right to engage in Class III gaming at the West Valley Resort," the lawsuit states.
The tribe denies it, pointing out that a federal judge ruled for the O'odham and against the state in 2013.
"This court rejected that claim, holding that that 'the Nation's construction of a casino on the Glendale-area land will not violate the Compact' and 'is expressly permitted by [Indian Gaming Regulatory Act],'" the complaint states.
The state appealed.
Then-Attorney General Tom Horne sued the O'odham in 2011, claiming the casino would violate Arizona Proposition 202, of 2002, which allowed casinos only on existing tribal lands, unless exempted under the Indian Gaming Regulatory Act. The O'odham's main reservation is west of Tucson, and the West Valley Resort & Casino is on federal trust land more than 100 miles away from tribal headquarters in Sells.
Despite the federal ruling, Arizona is throwing a wrench into the nation's plan to open the casino by the end of the year, taking the position that "the Nation committed 'fraud' in the negotiation of the Compact; for that reason, ADG refuses to issue certifications and approvals relating to the West Valley Resort, even though IGRA and the Compact expressly authorize the project."
The Attorney General's Office advised ADG in an April letter that "(i)n determining whether to certify the proposed casino, [ADG] is vested with the statutory discretion to determine whether the application is at odds with the public welfare and safety and/or is consistent with the thorough and fair regulation of gaming in Arizona."
In another letter, newly elected Republican Gov. Doug Ducey told Bergin that evidence of fraudulent inducement would "be grounds for the denial of the regulatory approvals necessary to operate the proposed casino," and said that Bergin should "communicate those grounds to the [Nation] at the earliest appropriate date."
Chairman Manuel says Arizona is exceeding its authority. The federal government, not the states, have always had primary authority to deal with Indian tribes.
"Construction of the Nation's casino has been under way for 10 months and this extreme political effort to stop this important project cannot be allowed," Manuel said in a statement. "Arizona communities, businesses and workers support this project and the Nation remains committed to making sure it moves forward."
The ADG on June 9 provided the O'odham with new forms to certify employees, with this language: "Please be advised this application for certification is valid only for authorized Arizona gaming facilities. Employees of any location considered by the State to be unauthorized, or in pending litigation with the State concerning whether it is authorized, would be outside the approval granted through State Certification. Employees of unauthorized facilities may be subject to legal and/or regulatory risks."
Manuel looks at Arizona's actions with a cold eye.
"The irony here is that in their effort to try to stop this project, the state originally accused the nation of violating our Compact," Manuel said. "Now that a federal court has confirmed that the compact allows the nation to operate the West Valley Resort, the state refuses to abide by that decision."
The O'odham seek declaratory judgment that Arizona's authority is preempted by federal law, that it has no right to enforce sanctions on the casino, and that it may not interfere with the opening of the casino.
The tribe is represented by its Attorney General Jonathan Jantzen and by Seth Waxman with Wilmer Cutler Pickering Hale and Dorr, in Washington, D.C.
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