Congress steps into Indian Country brawl

Congress is stepping into a bitter, years-old Native American feud over casino rights, as a trio of Arizona tribes jockeys for position with a lobbying battle that has generated millions of dollars for K Street. 

The Senate Committee on Indian Affairs this week approved legislation that would prohibit the Tohono O’odham tribe from completing construction on a casino located on its reservation just outside Glendale, about a mile from the Arizona Cardinals’ University of Phoenix Stadium.

Two other tribes — the Gila River Indian Community and Salt River Pima-Maricopa Indian Community — are pushing to block the project, which would compete with their casinos in the area.  They contend, through their hired guns on K Street, that the casino would break an agreement that they claim Tohono O’odham made last decade to avoid building any new casinos around Phoenix.

But Ned Norris Jr.,  Tohono O’odham’s chairman, calls the movement of the legislation through Congress “profoundly disturbing,” adding that it would “create a no-competition zone for two politically-well connected, wealthy tribes.”

The three tribal communities fighting over the measure have collectively spent more than $16 million on lobbying since 2012, when the legislation first began to gain traction. The initial congressional battle began in 2010.

Gila River paid lobbyists at Akin Gump Strauss Hauer & Feld $980,000 in lobbying fees during the first three months of 2015 alone — the second largest single contract on K Street — though the firm says approximately half of the money was directed at other items on its federal agenda.

On the tribe’s account are former Reps. Vic Fazio (D-Calif.) and Bill Paxon (R-N.Y.), a slew of former high-ranking congressional aides and the head of Akin’s American Indian law and policy group, Don Pongrace.

Pongrace said he’s taking a “just the facts” approach to advocating for Gila River, arguing the tribe made assurances it would not build in the Phoenix area, while involved in negotiations with other tribes who were in the midst of giving up some of their own casinos.

“Every time we have been able to present the facts, of fraud and misrepresentation, we have found a more receptive audience for that message,” he said. “We intend to continue to present it.”

The Salt River Pima-Maricopa Indian Community spent $140,000 to lobby on various issues — including the legislation — during the first quarter of the year.

Tohono O’Odham, meanwhile, paid out $390,000 to three firms during the same period. While the bulk of those fees went to Dentons, the largest law firm in the world, it has also hired three other firms this year.

Its outside lobbying team now includes former Rep. Richard Pombo (R-Calif.) and David Mullon, who served as the chief counsel for the National Congress of American Indians.

Last week, the Congressional Budget Office (CBO) released a report concluding that the federal government could face up to $1 billion if Tohono O’odham sues for compensation — further complicating the congressional debate. The CBO likened such a suit to an eminent domain proceeding, since the bill would take away the tribe’s right to build a casino.

Pombo said CBO’s warnings “warrant serious consideration, and the bill shouldn’t be treated like the naming of a post office.”

To its supporters, the bill, dubbed the Keep the Promise Act, would enforce commitments that Tohono O’odham allegedly made in 2002, agreeing not to build any new casino within the Phoenix metropolitan area. The alleged concession came as part of a deal with the State of Arizona in which the tribe would be allowed to build a casino elsewhere and the state would agree to prohibit non-Indian casinos.

Sen. John McCain (R-Ariz.), who sponsored the bill in the Senate, said that it would preserve the intent of the Indian Gaming Regulatory Act of 1988.

“The intent of the law specifically was not to allow a tribe to parachute into the middle of a city and set up a casino,” McCain told The Hill. “I know the intent of the law because I wrote it.”

Stephen Roe Lewis, Gila River’s governor, said he fears that without an act of Congress, Arizona’s compact with Indian tribes is at risk.

“The Keep the Promise Act is important not only for what it does, but as a symbol that the tribes in Arizona do take their promises seriously and are willing to fight to keep them,” he said in a statement to The Hill.

But Tohono O’odham and opponents of the bill say it never made such a pact, and Congress is trying to interfere with a local dispute that courts should decide.

“I used to think that when people in Congress read the court decisions they would see that the Nation has played by the rules every step of the way,” said Norris, Tohono O’odham’s chairman “But the more we win in court, the harder Congress tries to rewrite the rules.”

The tribe points to a slew of court cases where its arguments proved victorious, though its opponents say none of the rulings amounted to a definitive win.

Tohono O’odham was granted reservation status on the land in exchange for other land it owned near a federal dam that made it unusable. But the process the tribe took to buy the land and make it a reservation is the source of intense debate and lawsuits.

“Court after court has said that there’s nothing in the compact that prevents the tribe from opening this casino,” said Rep. Raúl Grijalva (D-Ariz.), the top Democrat on the House Natural Resources Committee, who has Tohono O’odham land within his district.

“Let it run its course judicially and through the administrative process,” he said. “That should be the arbitrator in the end.”

The fight isn’t entirely partisan. The bill Rep. Tom McClintock (R-Calif.), a member of the House Natural Resources panel, is one of its most vocal opponents of the bill, which passed the House last year by voice vote.

“It breaks a very clear, legal promise made by the government of the United States,” he said in the March hearing.

McClintock and others opposed to the bill now have the cost estimate from the CBO to support their cause.

The Senate Indian Affairs Committee is due to take up the bill Wednesday. While its sponsors are confident that it will pass through committee, they’re less optimistic about the full Senate.

“I think it’ll probably go through the committee, but I haven’t counted the votes,” McCain said. “Honestly, I don’t know.”