The state of Arizona has defended its decision to destroy documents relating to its long-running battle with the Tohono O’Odham Nation over whether the tribe should be allowed to operate Class III games at its Desert Diamond West Valley Casino And Resort.
The Tohono O’Odham Nation opened its Glendale facility as a Class II casino in December after overcoming several legal, political and regulatory hurdles but it is not permitted to offer Class III games such as random number generated slots because the Arizona Department Of Gaming has refused to grant it the appropriate authorizations.
The tribe subsequently filed a lawsuit in hopes of getting a Class III license with Arizona Assistant State Attorney General Roger Banan testifying under oath in August that he deliberately destroyed notes relating to the Desert Diamond West Valley Casino And Resort.
Banan testified that these notes related to meetings he held with the Gila River Indian Community and the Salt River Pima-Maricopa Indian Community, two tribes known to be opposed to the Tohono O’Odham Nation’s new casino, under the direction of Daniel Bergin, Director for the Arizona Department Of Gaming. A behind-closed-doors deposition from Banan reportedly explained that these encounters saw the rival tribes offer up ideas on how to put an end to the Desert Diamond West Valley Casino And Resort’s hopes of getting a Class III license.
The Tohono O’Odham Nation had requested the notes in order to determine if Bergin, who is opposed to the casino receiving a Class III license and has accused the tribe of fraud, was working in concert with its competitors. Banan revealed that he took the notes in order to brief Bergin but followed “routine practice” in getting rid of them.
After learning that these had been destroyed, the tribe filed a motion for sanctions but the state has now countered by stating that it had been under “no duty” to preserve the documents, according to a report from Capitol Media Services.
“The court should see the [Tohono O’Odham Nation’s] motion for what it is, a last-ditch effort to avoid the consequences of the [Tohono O’Odham Nation’s] years-long fraud on the state, the voters and other tribes,” said the state. “That effort should be rejected.”
The Tohono O’odham Nation has prevailed against strong opposition from the state and competing local tribes in nearly 20 lawsuits with only minor setbacks. Paul Charlton, the tribe’s lead attorney, countered the state’s argument by stating that the documents should have been preserved because these had been public.
“Banan’s destruction of his notes was all the more egregious because they were public records protected by the Arizona Public Records Law,” said Charlton. “As such, Banan knew, or certainly should have known, he had a legal obligation to preserve them.”