Panel approves gaming agreement

By Kathy Helms
Diné Bureau

WINDOW ROCK — Michell Dotson and Deputy Attorney General Harrison Tsosie scored a win for Navajo Nation President Joe Shirley Jr. Thursday by gaining Intergovernmental Relations approval to transfer gaming device operating rights to the Tohono O'Odham Nation.

After considerable questioning of Dotson, Tsosie, and legislation sponsor Delegate Ervin Keeswood (Hogback), IGR said that since $20 per device per day was the going rate for lease fees and, therefore, about all they're going to get, why not up the ante and toss in 200 more machines since the odds are stacked against the Nation having a casino in operation within the next four years.

"President Shirley was very intentional in selecting only 200 machines for only two years, because he wants to have a stream of revenue come in while we are developing our establishments," Dotson said.

"But he does not want to risk having to lease out a huge number of machines for a long period of time. He wants to keep it short and limited."

Delegate Omer Begay questioned whether during the negotiations between President Shirley and the chairwoman of the Tohono O'Odham Nation, there was a request for a higher amount of gaming devices.

"If we're going to be giving out some machines for lease, we might as well go for higher numbers, because I don't believe that the Nation can come up with four gaming facilities in four years. It's kind of impossible. We're way late in the game.

"We may be able to get one building up or one gaming facility up in four years, but my question is, can we do a higher amount (of gaming devices) for four years, or stay with the two years but the higher amount?" Begay asked.

Want some more?
Dotson said that when President Shirley was notified by the Tohono O'Odham chairwoman,"they essentially made an offer, and the offer was $20 per machine per day. If I recall correctly, they did want more gaming devices.

"So what we did was we looked into what the market was providing for in terms of the slot machines, and the going rate is $20 per machine."

Begay also questioned whether the Nation would have to pay taxes associated with the transfer.

Dotson said, "The tax burden is on T-O. They are the ones that are generating the huge amounts of revenue." She also told IGR that if there is a consensus of the committee, "I can share information back with President Shirley that there is interest in leasing more devices, if that is truly what the IGR is interested in."

Begay responded, "My question still remains unanswered. How many machines did Tohono O'Odham want, or T-O? The N-N would like to know that."

Dotson said she believed it was 400, but couldn't say for certain. She offered to make a phone call to find out. "This was something that was a communication between the chairwoman and President Shirley," she said.

Begay told presenters, "For some reason or other, I just can't palate this negotiation. Why $20 per machine?"

Tsosie said that while gaming devices might pull in $500 per day in areas such as Phoenix, as Begay had suggested, across the state the average returns are more like $200. "The casino owners must pay operational and regulation costs, among others, which would probably reduce that number down to a certain amount, and in this case, the Navajo Nation would be taking $20 of that also.

"The other thing you want assurances on, is what assurance we have that we'll be able to retain these rights," Tsosie said. "The assurance is in the transfer agreement. It specifically spells out what our rights and obligations can be under this transfer agreement.

"In addition to that, the Navajo Nation has a Navajo Nation-Arizona State Compact. It spells out specific provisions as to how a tribe can transfer some of its gaming device rights to another tribe.

"So, we already have a compact with the state of Arizona and we'll have a compact with the Tohono O'Odham Nation, and it specifically spells out our rights and obligations, and those are our assurances," he said.

Where's the team?
Delegate LaVern Wagner also raised a concern regarding the agreement between the two tribes. "I would think the other party would be here if they're serious. A member from that nation ought to be here. If I'm mistaken, maybe perhaps we should introduce that person at this time.

"And I would like to know who all is the Navajo Nation negotiation team? Those people should be identified also for the record, and did they go through the IGR clearance to have that group negotiate on behalf of the Nation?" she asked.

Responding to Wagner's comments, Dotson said, "There is no negotiating team with respect to this transfer agreement." She said the matter was discussed between President Shirley and the chairwoman of the Tohono O'Odham Nation.

"In fact, President Shirley has received numerous requests from various tribes within the state of Arizona, requesting for consideration of the transfer agreement. We worked very closely with Steve Hart from the Lewis and Roca law firm (Phoenix) to get the ball rolling, so to speak.

"So to answer your question, Council Delegate Wagner, there was no negotiation team. It was purely an administrative matter that the president undertook."

In a memorandum of legal advice regarding the legislation, submitted Thursday to Navajo Nation Council Speaker Lawrence Morgan from Tamsen Holm of the Office of Legislative Counsel, Holm said Keeswood was sponsoring the legislation "at the specific request of the Office of the President and that the proposed Agreement was in fact initiated by the Office of the President and reviewed by the Deputy Attorney General."

Delegate Leonard Chee told Dotson, "I feel like the Nation was left completely out of this circle of negotiation. That's why we have all these questions. Had it been different to where the Task Force on Gaming of IGR were involved, I think we wouldn't have as many questions.

"Mr. Omer Begay's intent is to make way for other negotiations. I would recommend the gaming task force members be involved in it. It wouldn't appear that Mr. Shirley is the only one negotiating all these contracts, agreements," he said.

Delegate Pete Ken Atcitty called attention to legal advice from Lewis and Roca which states:"If the Tribe is the Navajo Nation, then the Tribe's Gaming Facility allocation shall be two (2), even if the Tribe transfers up to 1,400 Gaming Device Operating Rights."

Dotson translated: "If you look at some of the previous information provided, if we allocate more than 475 devices, we lose one (casino). So if you do the simple math, 475 times two, there's the assumption that more than 925 would result in the loss of two.

"But basically what this provision is saying is the maximum amount that the Nation will lose in terms of facility allocation will be two, up to 1,400 machines," she said.