Keep the Promise Act of 2013
Floor Speech
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Mr. GRIJALVA. Mr. Speaker, I yield myself such time as I may consume.
We're back again. This is the second time with a different piece of legislation. And, quite honestly, H.R. 1410 is nothing more than special interest legislation designed to protect the Phoenix market from a few wealthy tribal gaming enterprises.
The legislation not only upsets settled law, but potentially subjects the United States to new liabilities for breach of trust, breach of contract, and taking claims valued in the hundreds of millions of dollars, but it also creates a dangerous precedent for hundreds of tribal-State compacts and land and water rights settlements that are found nationwide.
Let's talk about those promises. The Gila Bend Act, approved and enacted by this Congress 25 years ago, entitled the Tohono O'odham Nation to acquire nonreservation land anywhere within three Arizona counties in order to replace original reservation land rendered economically useless by the Painted Rock Dam, the San Lucy District in particular, which that community was totally destroyed.
The settlement specifically promised that the nation could acquire new replacement land that could be used by the nation for economic development and as a ``Federal reservation for all purposes.''
H.R. 1410 would impose additional restrictions beyond those agreed upon by the United States and the Tohono O'odham Nation 25 years ago, breaking the solemn promise made between two sovereign nations. This would mark the first and only time in the modern era in which the United States unilaterally reneges on a tribal land and water rights settlement.
Last time around, the special interests behind this legislation tried to amend the actual settlement language from 1986. They soon discovered that that would open up a Pandora's box, potentially rendering more than a century's worth of binding, legal agreements with Native American tribes and nations moot.
This time, they thought they would be clever and instead attack the actual State compact, but this legislation sets equally dangerous precedent. In the 2003 compact, the State explicitly agreed that the nation could conduct gaming on any of the nation's lands that meet the requirements of IGRA. Proposition 202, the voter-sanctioned State law which gave the Governor the authority to enter into the very tribal gaming compact now in force, includes the exact same language allowing the Tohono O'odham Nation to conduct gaming on lands that meet the requirements of IGRA.
H.R. 1410 breaks this contractual promise that Arizona made to the Tohono O'odham Nation. It would also be the first and only time that the United States unilaterally inserts new terms into a tribal-State gaming compact. Let me restate that. With H.R. 1410, the Federal Government will be stepping in and unilaterally altering a voter-approved, legislature-approved,
tribal-approved, and Governor-approved binding tribal-State compact.
How's that for a dangerous precedent? This legislation would put all tribal gaming compacts at risk of collateral attack by Members of Congress.
Now the special interests are bringing H.R. 1410 up this time because they have lost yet another court case. Since its predecessor, H.R. 2938, was introduced in 2011, almost every argument to justify H.R. 2938 and now H.R. 1410 has been rejected by Federal courts in multiple cases. In fact, there have been 11 administrative and judicial decisions rejecting justifications for this legislation. The latest came on June 25, 2013, when the Federal district court ruled the Arizona tribal-State gaming compact was fully integrated and contained no prohibition of new gaming in Phoenix, and this foreclosed any alleged promises not to game. The court dismissed all remaining claims brought by plaintiffs.
Aside from making good on what the Federal Government promised the Tohono O'odham Nation, this is also about jobs, jobs that this project would create, 9,000 of them, and $300 million in annual economic impacts that are critical to the economic well-being of the west valley of Phoenix and the State of Arizona. This is why many of the surrounding cities and hundreds of business leaders and trade organizations are supportive of the project.
The city of Glendale, where the casino would be located and which was initially party to the lawsuits, is now actively working with the nation to move forward on the project. They see the economic benefits it will bring. In fact, they are asking Congress not to pass this legislation as it will only undermine their ongoing talks.
Congress needs to stop trying to interfere in this issue in order to pick winners and losers. This bill is just a waste of time and energy that this Congress should be spending on many more pressing issues that face this Nation.
It should be noted that the administration has twice testified against this bill in both versions, which regardless of what happens today in the House, it will not become law.
I reserve the balance of my time.
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Mr. GRIJALVA. Mr. Speaker, I yield myself such time as I may consume.
(Mr. GRIJALVA asked and was given permission to revise and extend his remarks.)
Mr. GRIJALVA. Let me enter into the Record three letters. One is from Councilwoman Norma Alvarez from the city of Glendale. Let me quote from it:
As a member of the Glendale City Council, I urge you to oppose H.R. 1410, the so-called Keep the Promise Act. This bill is aimed at halting the Tohono O'odham Nation's resort and casino project in the West Valley in order to preserve the market share of two wealthy tribes on the other side of the valley. In serving these narrow interests, H.R. 1410 will also be harmful to my constituents, who want the thousands of jobs that the West Valley Resort and Casino will create.
I am part of a majority of the Glendale City Council that supports beginning discussions with the Tohono O'odham Nation to find ways to work together. These talks are long overdue and they need an opportunity to succeed.
From Councilman Samuel Chavira from Glendale, let me quote from him:
As a local elected official, I believe that this legislation is not only detrimental to my community, but is an affront to the notion of fairness in attempting to overturn a land settlement resolved by Congress three decades ago brought by parties who have repeatedly failed to sustain their position in court. My constituents want this project to go forward, the sooner the better. Please join me in opposing H.R. 1410.
From Ian Hugh, councilman, city of Glendale:
There is now a consensus of the Glendale City Council that favors pursuing discussion with the Tohono O'odham Nation about its project, which represents our first opportunity in years to work together constructively. Passing H.R. 1410 at this moment would undercut the very local communities it is supposed to protect.
I ask you to please oppose this bill and oppose any effort to move forward on H.R. 1410 until after the discussions between the city and the tribe have run their course.
I also have one additional communication to enter. It is from Glendale Grassroots Tea Party Activists, and let me quote from their communications to Congress:
I feel confident that I speak for the majority of those involved with the grassroots Tea Party in Glendale as well as other Tea Party organizations in the West Valley that we all can be in agreement that to continue on this insane spending, egotistical stubbornness, and refusal to sit down in a professional-like manner and talk regarding this issue will eventually be the death trap financially of this city and the State, and hurt many innocent families in keeping good-paying permanent jobs out of their reach.
I am sending each of you a copy of this letter as well as posting it on Facebook Web pages of many of the legislative districts, Tea Party organizations, Republicans coalitions, and various other organizations, to ensure a peaceful resolution.
With that, I reserve the balance of my time.
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Mr. GRIJALVA. Mr. Speaker, I yield myself such time as I may consume.
It has been impossible to correct the misrepresentations, and to put that mildly, the constant and sophisticated disinformation lobbying campaign has persisted without regard to facts or reality. There has been some constant points that were made--that H.R. 1410 is about stopping reservation shopping and off-reservation gaming, akin to the situation that's going on in Michigan. It is totally different. It is unrelated, and the decree by Congress in law, upheld by State and Federal law, points to the fact that that is not real, and it is totally different.
The 202 initiative that the public voted on and passed, that that somehow is in jeopardy. The last court hearing reaffirmed that that was not the case.
And that it is a precedent for all State compacts to be opened up. Each State compact is unique, different, with its own checks and balances, and Arizona is no different.
This is a violation of the State gaming compact, and that there was a gentleman's agreement. Again, the courts pointed that that was not in fact part of the record or part of the decision, and that court decisions, very interesting, court decisions, Interior Department findings, are of no matter:
In 2009, April 30, the Department of Interior ruled in favor of Tohono O'odham Nation.
In 2009, June, ruled in favor of the Tohono O'odham Nation.
In 2010, July 23, Echohawk Trust decision letter, in favor of the Tohono O'odham Nation.
The Gila River v. U.S., 2011, March, court summary judgment in favor of the Tohono O'odham Nation.
May 20, 2013, Ninth Circuit Court decision in favor of the Tohono O'odham Nation.
The Tohono O'Odham Nation v. Glendale on an annexation issue 2011, May, Court of Appeals decision, Tohono O'odham Nation.
2011, October, Supreme Court denial of petition for review, Tohono O'odham Nation prevails.
2011, December, Supreme Court fee award, Tohono O'odham Nation prevails.
2012, January, Superior Court judgment, Tohono O'odham Nation prevails.
Tohono O'Odham Nation v. Arizona, 2011, June, district court summary judgment, Tohono O'odham Nation prevails.
2011, June, again district court judgment, Tohono O'odham Nation.
Arizona v. Tohono O'Odham Nation, district court order on a motion to dismiss claims 5 and 6; claims 1, 2, 3, and 7 in part, Tohono O'odham Nation wins.
2013, May, district court summary judgment order, all remaining claims except breach of contract under restatement, Tohono O'odham Nation wins.
2013, June, district court summary judgment order, all remaining claims, including breach of contract, Tohono O'odham Nation prevails.
Again, June, 2013, district court judgment, Tohono O'odham Nation prevails.
Eleven in total administrative and judicial decisions--but let's not let facts and judicial precedent and the fact that the Tohono O'odham Nation has prevailed consistently against the State, against the city of Glendale, against competing tribes over and over again and has had the Interior Department, which, as I stated earlier, has testified twice against the previous legislation and against this legislation.
I want to quote from The Glendale Star from their editorial of August 1:
Is it any wonder so many people distrust government--at any level? When there are so many questions about the motives of the plaintiffs that are suing the Tohono O'odham Nation, one begins to ask about the greed factor.
Does anyone believe the future of Indian gaming in Arizona is at risk if the Tohono O'odham Nation eventually wins this long, drawn-out battle in the courts? Who is willing to bet on the future of Indian gaming in our State?
If the congressman who is sponsoring this legislation is so set against gambling, he should be trying to get rid of all the casinos in the State. He should be out stumping for the end of gaming altogether.
Instead, he is working on the side of the two major gaming operations in the valley, both in the East Valley, by the way, and not the West Valley.
This congressman needs to start looking in his own backyard and trying to come up with solutions to unemployment, help for small business owners, transportation gridlock, and more than blocking what could be a big step toward economic stability, i.e., jobs. At least, the nation's resort-casino would provide construction jobs for many out-of-work carpenters and masonry workers for a year or two. Those jobs are needed now.
I mention all this because, as I said earlier, it's been difficult to try to counter the allegations and the misrepresentation and the disinformation that have been leveled against the Tohono O'odham Nation's efforts to establish a casino under a congressional decision and law that afforded them, to make them whole because of the land they lost because of the dam, and we're still back here on this particular piece of legislation.
So court decisions, administrative decisions matter not. Precedent matters not. The opening of Pandora's box, in terms of water claims and other settlements with Indian country, matters not.
What matters is to protect some very important gaming interests and special interests for two gaming entities that have had the luxury for the last 5, 6, 7, 8, 10 years.
Tohono O'odham Nation has prevailed in court. The issue of a backroom deal that wasn't kept has been ruled moot by the court. The issue that this is somehow reservation shopping and offsite gaming has been ruled moot by the court.
And then you have the Glendale City Council, a principal plaintiff in this, now retreating and, rather, working with the Tohono O'odham Nation to work out some agreements, as opposed to continuing the litigation.
The courts have ruled $4.5 million is owed to the tribe in legal costs by both the State and the affected gaming industry, also from Glendale; and I think it's time, as this legislation goes forward, that people ask a very fundamental question about this legislation: Is it intended to preserve a gaming compact? Which, I believe, and the court has ruled, no.
Or is it intending to preserve a market share for two gaming entities that have enjoyed that market share by themselves?
The free market requires competition. The free market requires opportunity. And all that is happening in this legislation is to try to constrict the ability of people in this free market of ours to compete, to create jobs, and to create opportunities.
Mr. Speaker, with that, I reserve the balance of my time.
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Mr. GRIJALVA. Mr. Speaker, I yield myself such time as I may consume.
There's no question that the prevailing point of view--and I talked about the disinformation--will prevail here today. I have no question about that.
The fact that we are going against judicial decisions, undoing a law that was passed by this Congress to make whole a tribe that lost their land 25 years ago, and interjecting ourselves, for the first time in the history of this Nation into a State and Native American gaming compact, that doesn't negate that.
So, you know, my opposition, whether it's in the distinct minority or not, is based on what I believe is reality and fact. And if this debate were about reality and fact, and not about supposition, disinformation, or misinformation, the debate would be in a whole different tone.
This is about economic development for the State. This is about Congress making true on a decision they made 25 years ago, and this is about Congress not short-cutting judicial decisions that have been made over the course of the last 5 years, in which the Tohono O'odham Nation has prevailed in every one of them.
So, given all that, bipartisanship, I love it, but being correct and holding true to a decision that this Congress made 25 years ago, I think, is consistent with the work of this House and consistent with preserving gaming compacts in States and, more importantly, making whole a tribe that lost valuable resources to the Federal Government in the past.
Mr. Speaker, I reserve the balance of my time.
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Mr. GRIJALVA. Mr. Speaker, I yield myself such time as I may consume.
In closing, let me say that the situation in Michigan, as I mentioned, is unrelated to this. There is no legal precedent, and there is no congressional action
to guide the decisions of courts, which has been the case with the Tohono O'odham decision and with the casino in the West Valley.
Let me just say, this is about fairness. This is about Congress upholding its word.
This is not about reservation shopping. It's not about offsite gaming. It is not about a gentlemen's agreement.
And it is totally and entirely about an act that was taken 25 years ago, upholding that act, making a tribe whole, and not opening up a Pandora's box in which litigation will continue to proceed once this legislation goes forward.
Mr. Speaker, I yield back the balance of my time.
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