Indian Reservation - Background and Historical Summary
Indian Gaming in Arizona
In 1988, the Federal Indian Gaming Regulatory Act (IGRA) was enacted to provide for gaming on Indian reservations under certain circumstances. IGRA requires that an Indian tribe seeking to open a “Las Vegas-style” Indian gambling facilities reach an agreement, called a “compact” with the state. Additionally, IGRA prohibited Indian gaming on any reservation land no existing as of October 1988 unless the Secretary of the Interior determined that the gaming facility was not detrimental to the local community and the tribe secured the consent of the state’s governor.
There are 21 tribes in Arizona. Some tribes are in areas that have no viable gaming opportunities or have chosen not to engage in this activity. Others have lands that are close to metropolitan areas and have developed significant gaming interests. Tribes with gaming interests have worked closely with the state to formulate a balance between their interests, non-gaming tribal interests, and the interests of non-Indian communities.
The work towards this balance began in 1992 with legislation that allowed Indian gaming facilities to operate within the state. In 1994, those statutes were amended to clarify the authority of the state and to inform the federal government of the State’s intention to maintain jurisdictional control over Indian gaming. In the1994 amendment, gaming statutes were modified to specifically state that “the government shall not concur in any determination by the United States Secretary of the Interior that would permit gaming on lands acquired after October 17, 1988.” The result of this legislative language was to unequivocally limit Indian gaming to existing reservations.
In November 2002, Arizona voters passed Proposition 202, a ballot initiative that would continue Indian gaming in the state after the original compacts expired in 2003. Proposition 202 resulted from extensive negotiations among several parties, including the Arizona Governor and several tribes. This proposition was publically supported by 17 of the Arizona tribes, including the Tohono O’odham Nation and became known as the “17-Tribe Initiative.”
Many of the statements on behalf of the tribes urged support for Proposition 202 on the basis that gaming would then exist only on existing Indian reservations, out of cities and towns. Voters supported the proposition largely due to the provision that Indian gaming facilities would be limited to then-existing reservation land and that no new casinos would be built in the Phoenix metropolitan area and only one in Tucson for at least 23 years.
Land Purchase and Notification to City
On August 21, 2003, just months after the Tohono O’odham Tribe’s very public support of Proposition 202, which limited Indian gaming to then-existing reservations, the Tribe purchased 134 acres at 91st and Northern Avenues. The transaction was conducted using the name, “Rainier Resources, Inc.”, which was incorporated on March 2003 in the state of Delaware. Its mailing address was a Seattle, Washington location. The Tribe had no obvious or direct connection to the corporation until January 2009, when the land's title was finally transferred to the Tohono O’odham Nation so that it could file its application to create a reservation. All during this time, the Tribe kept its plans for the property secret.
During that time, substantial community development was taking place in the area over this period. Neighborhoods were built and a public high school was opened across the street from the site. Restaurants, hotels and retail establishments were developed, all without the knowledge that the Tribe had future plans to establish an Indian reservation and develop Indian gaming in the neighborhood.
The Tohono O’odham Tribe first made contact was made with the city on January 28, 2009. That same day, they filed their trust application with the Secretary of the Interior. The next day, the Tribe held a press conference and announced its intentions publicly. City officials have twice more met with the Tribe to discuss their plans. Each time the Tribe refused to provide specific information about their project, deferring any meaningful discussion until the reservation was created and the city, according to the Tribe, has nothing to say about what they do on the land.
Notwithstanding Arizona law and the tribes’, including the Tohono O’odham’s, commitments to the Arizona voters, the Tohono O’odham’s proposal does precisely what the voters did not want. It creates Indian gaming on a new reservation in the middle of a community. This proposal is contrary to the policy underlying IGRA which was crafted to provide appropriate state control. It is contrary to the mandates of the Arizona legislature, which recognize the sovereignty of the State of Arizona and its rights under the United States Constitution. And, the Tribe’s proposal completely upsets the very important public policy balance that has been reached with respect to Indian gaming in Arizona.