Arguments were heard on Friday by U.S. District Court Judge David Campbell from attorneys for three state officials that the Tohono O’odham Nation has no right to sue them in its bid to open a casino near Glendale, Arizona.

Since 2009, drama and litigation has surrounded the opening of the West Valley Casino and Resort in Maricopa County. The Tohono wants a court order issued directing Gov. Doug Ducey and Attorney General Mark Brnovich to open their nearly completed casino in Glendale. Lawyers for the two say the lawsuit filed by the tribe doesn’t pertain to the pair because the power to make the decision lies with Daniel Bergin, director of the State Department of Gaming, not their clients. Bergin is also named in the suit.

In a separate filing, Matthew McGill, Bergin’s lawyer, did not dispute that his client’s office would be deciding whether the necessary licenses would be issued, but that regardless of the state’s decision to name the three state officials, the state has immunity from lawsuits from the tribe in federal court. McGill added that the final decision over casino gaming within the tribe’s borders fall within the Indian Gaming Regulatory Act.

The voter approved Proposition 202 updated guidelines for Indian gaming, ensuring that the Tohono O’odham would be able to conduct gaming and maintain operation of their four casinos on settlement lands now and in the future.  According to McGill, if the tribe felt maligned by the state, the proper legal recourse would be to claim that Bergin’s refusal to license the new casino violates the terms of the compact the state signed with it in 2002.

McGill added that any suit claiming a violation of the compact would require a breach of contract claim by the tribe. The problem with that is that the state would then defend that the deal would have to be deemed unenforceable  because the contract was obtained by fraud. The fraud allegation is the major point of the tribe’s lawsuit over Bergin’s refusal to grant a license to the new casino. Limits on the number of casino’s a tribe can have and their lotions are set by the compacts and the 2002. It was based on the presumption that gaming would be limited to existing reservations, but in 2013 a federal judge ruled that Arizona’s compact governing Indian gaming doesn’t ban more tribal casinos from opening in the Phoenix metropolitan area.

The Tohono O’odham Nation broke ground on Aug. 28 2014 for construction of the new casino, and agreed to pay the City of Glendale about $1.3 million a year for 20 years, including a one-time, up-front payment of $500,000. A donation of $100,000 a year to the Glendale Convention and Visitors Bureau to promote Glendale and the West Valley is also required in the agreement.

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