The Tohono O’odham nation and its little casino that could

It’s hard to think of any project that has overcome more controversy and fire-breathing political opposition than the Tohono O’odham nation’s Desert Diamond West Valley Casino in Glendale, Arizona.

The short list of those who have opposed the $400 million casino since its construction was announced, in 2009, includes U.S. senators John McCain and Jeff Flake; U.S. representatives Trent Franks, Paul Gosar, David Schweikert, Matt Salmon, and Ann Kirkpatrick; Arizona governors Jan Brewer and David Ducey; the Arizona Department of Gaming, the Salt River Pima-Maricopa and Gila River Indian tribes, and the citizenry and city council of Glendale.

Basically, you’d be hard pressed to find anybody outside of the Tohono O’odham tribe itself who actually wanted this thing built. But against all odds, somehow, some way, the casino’s construction forged ahead.

The endless attempts to block the project by the above-mentioned entities – which comprise essentially the state’s entire political establishment – have proven stunningly futile. These efforts include strenuous objections by the city of Glendale, a 2011 state law authorizing Glendale to annex the land and nullify its reservation status, lawsuits filed by the state and other tribes claiming the casino violates a 2002 gaming compact, and multiple attempts by Arizona’s congressional delegation to pass federal legislation blocking its construction.

Defying all odds, the tribe has prevailed against the state law and tribal lawsuits in the courts. In May 2014 the tribe was handed a stupendously-timed victory by a U.S. Supreme Court decision in favor of tribal sovereignty, in a case where Michigan sought to block an off-reservation casino from being built by the Bay Mills Indian community.

Unable to prevent Desert Diamond from opening last December, the Arizona Department of Gaming Director resorted to blocking the facility from operating Class III games like slot machines and table games. So the facility offers only poker plus more than a thousand gaming machines that aren’t Class III. But a lawsuit filed by the tribe to force Gaming Director Daniel Bergin to allow Class III games has started what may be the final battle in this saga.

In this newest legal case, a federal judge ruled on June 23 that the Tohono O’odham nation must turn over potentially incriminating records of private tribal meetings since 2002, when a gaming compact between the state and the tribes to regulate the expansion of casinos was negotiated. These documents had previously been protected by attorney-client privilege, but will now be available publicly.

Those meeting notes should reveal whether the state of Arizona’s assertions that the tribe acted fraudulently and deceptively during the compact negotiations are correct. The state has claimed that the Tohono O’odham nation engaged in double talk and defrauded voters by negotiating a prohibition on casino expansion in the Phoenix metro area while secretively purchasing, through a shell company, 54 acres of unincorporated land in Maricopa County on which it would eventually build a Vegas-style casino.

The tribe’s defense has been that it engaged in no deceptive behavior, that the 2002 compact allows for the casino’s construction, and that the state’s position that no new casinos can be built in the Phoenix area is based on a misinterpretation of the compact.

Thus far, the state has been unable to put together a compelling enough case to convince the courts that the casino is unlawful and should be blocked. The state similarly failed with the U.S. Department of the Interior, which took the land at issue into trust into 2010, thereby giving it official reservation status.

For Director Bergin and company, their last shot at blocking the Desert Diamond, which is questionably situated across the street from a high school, is to find something incriminating enough in these tribal meeting records to persuade the courts that Tohono O’odham deliberately engaged in fraudulent behavior. Even if such evidence is uncovered, another round of litigation would likely drag this situation out for several more years.

While the state has continued to fight tooth and nail, others have not. After fiercely opposing the casino for five years, the city of Glendale chose a take-the-money-and-run approach by opening negotiations with Tohono O’odham in 2014. The city ultimately forged a revenue-sharing agreement with the tribe; the city will receive $1.5 million per year for 20 years.

The state may be wise to consider a similar “if you can’t beat ‘em, join ‘em” approach if this latest attempt comes up dry. Indeed, the one lesson we can extract from this scenario is that it is foolhardy to write off the Desert Diamond – the Tohono O’odham’s little casino that could.