Keep the Promise Act

Floor Speech

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Mr. Speaker, for several years, I have been actively involved in a troubling off-reservation gaming issue in my home state of Arizona involving the Tohono O'odham Nation. The tribe has been attempting to move from their ancestral lands in Tucson, into another tribe's former reservation in the Phoenix metro area, for the sole purpose of building a Las Vegas style casino.

This comes after Tohono O'odham and 16 other Arizona tribes adopted a compact, approved by Arizona voters, which expressly promised there would be no additional casinos or gaming in the Phoenix metro area until 2027. In exchange for this promise, the voters granted the tribes a statewide monopoly on gaming and other tribes gave up significant rights.

H.R. 308 was introduced to ensure that the promise of no additional casinos in the Phoenix area is kept until the existing tribal-state gaming compacts expire, without interfering in the trust acquisition itself
Let me explain how this legislation came to be and why it must be enacted into law. In return for exclusivity in Arizona, the tribes agreed to a cap on the number of casinos in the state and in the Phoenix metro area, to restrict the number of machines in the state and to share machine revenue with rural non-gaming tribes so they could benefit from the compact.

Every urban tribe, except for Tohono O'odham, agreed to this limitation. Tohono refused, citing the need for a new casino in Tucson or on the rural part of the tribe's reservation. The state and other tribes finally agreed to the restrictions on gaming being pushed by Arizona's Governor and others, but also yielded to Tohono's stated need.

After the agreement was reached, the tribes and state promoted their model compact by saturating the airwaves and newspapers with the clear message that under the compact there will be no additional casinos in Phoenix and only the possibility for Tohono O'odham to build one more facility in the Tucson area. Tohono O'odham alone spent $1.8 million dollars urging Arizona voters to rely on this limitation.
Tohono had begun efforts to find land in the Phoenix area to open their fourth casino.

The voters approved the tribal state compact in November 2002 and rejected two competing propositions. The first would have allowed unrestricted tribal gaming without any revenue sharing for rural non-gaming tribes; the second would have allowed for full commercial gaming without restriction.

Shockingly, a few months after the voters approved the compact, Tohono finalized a multiyear effort to purchase land in Glendale for a casino and used a shell corporation to conceal its identity.

Tohono's dismissal of their promise to build no additional casinos in Phoenix is not something that Congress can ignore when the result will be so harmful to what had been a national model.

Furthermore, Tohono has falsely been claiming a victory in court relative to their less-than-honest dealings with other tribes and the State of Arizona.

This sentiment is factually wrong and morally indefensible. The Tohono ``won'' nothing based on the merits. Rather, the case was dismissed on the draconian doctrine of sovereign immunity. In other words, the court ruled that the tribe cannot be sued in court because ..... It can't be sued in court.

In fact, the Court made a statement that it would have likely ruled against Tohono had it not been for sovereign immunity. Mr. Speaker, I submit evidence obtained from underlying litigation discovery in State of Arizona v. Tohono O'odham in order to supplement the record on H.R. 308. The opponents of this bill falsely claim that the Tohono O'odham Nation (Tohono O'odham, TO or the Nation) ``won'' in court relative to TO's less-than-honest dealings with other tribes and the State of Arizona. Indeed, one Member of the House publicly stated that the bill circumvents a court ruling.

This sentiment is factually wrong and morally indefensible. The TO ``won'' nothing on the merits. Rather, the case was dismissed on the draconian doctrine of sovereign immunity. In other words, the court ruled that the tribe cannot be sued in court because ..... It can't be sued in court. That circular logic is pretty much the extent of the victory. The merits of the case were never addressed, and that is why Congress' oversight in these matters is so important.

As it turned out, discovery in State of Arizona v. Tohono O'odham revealed that the TO Nation was secretly looking to purchase land in the Phoenix metropolitan area during the last 18 months of the compact negotiations and during the entire referendum process when the tribes were actively seeking support from Arizona voters on the basis that the model compact would not permit additional casinos in the Phoenix area. Evidence of these secret plans were primarily obtained from Vi-ikam Doag Industries (VDI), a Tohono O'odham chartered and owned corporation.

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These statements were uncovered during discovery in State of Arizona v. Tohono O'odham and revealed the depth of Tohono O'odham's conscious effort to mislead and defraud voters, as well as its State and tribal partners. Unfortunately, the U.S. District Court dismissed the State of Arizona's fraud and misrepresentation claims not on the merits, but because Tohono O'odham refused to waive its sovereign immunity from suit. With regard to the State of Arizona's ``promissory estoppel'' claim, which alleged that Tohono O'odham made false promises that induced the parties to enter into the compact to their disadvantage thus creating an enforceable promise, the court found on May 7, 2013, that the evidence supported the claim but that Tohono O'odham's sovereign immunity nevertheless barred its review of those allegations. Although Congress, through IGRA, waived tribal sovereign immunity for claims arising from executed compacts, the court determined Congress had not done so with regard to actions that preceded a compact's execution such as those that gave rise to the fraud, misrepresentation, and promissory estoppel claims in State of Arizona v. Tohono O'odham. The legal conclusion is dubious as it promotes fraud and sharp dealings long since rejected in modern commerce and illegal in many contexts.

H.R 308, the Keep the Promise Act, is narrowly crafted to address those claims that are shielded by Tohono O'odham's assertion of sovereign immunity.

I believe it is important for the truth to be known. The tribe acted immorally and covertly against its fellow tribes, the State and the general public. This incident and breach of trust has proven that TO cannot be trusted in the future relative to business dealings, tribal matters and commercial relations. I urge Congress to resolve this issue and reaffirm its authority by providing proper oversight of commerce amongst tribes.

An identical bill, H.R. 1410, passed overwhelmingly out of the Natural Resources passed the House last Congress by voice vote on September 17, 2013. This legislation has already passed the full Natural Resources Committee by unanimous consent in the 114th Congress.

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