July 7, 2014
Host: Ted Simons
- The U.S. Department of Interior issued a ruling last Thursday, giving the Tohono O’odham tribe final approval to make land it owns near Glendale part of the Tucson-area reservation. That removes a major obstacle for a casino to be built on the land. Heidi McNeil Staudenmaier, a partner in the Snell and Wilmer law firm and an expert on Indian and gaming law, discusses the ruling.
- Heidi McNeil Staudenmaier - Partner, Snell and Wilmer
| Keywords: business
Ted Simons: The U.S. Department of Interior ruled last week that the Tohono O’odham tribe can claim that land the tribe owns near Glendale is part of the tribe’s reservation. Here to tell us what the ruling means regarding plans to build a tribal casino on the land, is Heidi Mcneil Staudenmaier, a partner in the law firm of Snell and Wilmer and an expert on Indian and gaming law. Good to see you again.
Heidi Mcneil Staudenmaier: Thank you.
Ted Simons: We always ask you in when something happens and it always seems to side with the tribe. What did the department of interior exactly decide?
Heidi Mcneil Staudenmaier: The department had issued a ruling several years ago which said that the tribe had the legal right to take this particular land, the 54 acres in Glendale into trust. That decision was then the subject of a lawsuit in Arizona federal court. The Arizona federal court judge said you're right, you can take it in a trust. It was then appealed to the ninth circuit Court of Appeals. The ninth circuit also generally agreed with that but they said you know what? We don't think the secretary of the interior addressed an issue of whether or not the land at issue lies within the corporate limits and that's what's important here, the language of corporate limits of Glendale and so they said okay, secretary of the interior, I want you to look at this again, and look at it specifically in the context of does this land lie within the corporate limits of Glendale? That was the sole issue that the secretary was to look at.
Ted Simons: They basically were looking for clarification?
Heidi Mcneil Staudenmaier: Yes.
Ted Simons: So the -- what does that mean? I think everyone can figure out a county island is not involved in a city. What's going on here?
Heidi Mcneil Staudenmaier: Well, the arguments that were made by the opponents is that this land, it is a county island. There are three sides of it that are under the jurisdiction of Glendale and they said well, you know what, that really was not intended by this act to let this little island escape and therefore, the tribe should not be permitted to take this county island into trust. And so the secretary said we have to figure out what does within the corporate limits mean, and went through a very -- the ruling is 19 pages. It's very detailed in terms of the analysis, looking at policy issues and legal issues and case law. And at the end of the day, the secretary of the interior actually -- actually, it was the assistant secretary of Indian affairs Kevin Washburn who determined that what they needed look at was had the city of Glendale actually annexed this land into the city? And the assistant secretary said no. Didn't annex the land, end of story.
Ted Simons: So 19 pages of clarification there for the ninth circuit and I would imagine the ninth circuit now has enough clarification. What exactly will they be deciding on?
Heidi Mcneil Staudenmaier: Well, this was now ruled on by the secretary of the interior. Whether it goes back to the ninth circuit again to look at or whether or not the city of Glendale may have to start another lawsuit over again on this issue, I guess procedurally, I'm not quite sure other than I know it will probably continue to be litigated by someone, whether it's by the city of Glendale or the other tribes that are opposing this.
Ted Simons: Everybody's looking at the compacts regarding Indian gaming and the legality of opening that casino in the metro Phoenix area. Those seem to be overriding principles here. Where do they stand with this decision? Does anything change along those lines?
Heidi Mcneil Staudenmaier: I think in terms of the casino again, we've talked about this in the past. There are a lot of different challenges that the tribe, the Tohono O’odham tribe has faced in trying to get a casino off the ground. This is just one more step that they've taken forward. This decision is very careful to say that we are not making a decision on gaming. Basically the decision says you have the right, tribe, to take the land into trust and what that means is that the tribe will have jurisdiction over the land. They can exercise all rights over it as if it is new reservation land but it doesn't necessarily mean from that opinion that the secretary of the interior has made a decision that they can conduct gaming on it.
Ted Simons: Salt river tribe president said that this decision could lead the tribe, Tohono O’odham, any tribe, acquiring other county islands and building casinos on those county islands. Is that valid?
Heidi Mcneil Staudenmaier: Well, I understand the arguments being made. But the thing that you have to keep in mind here is that the underlying background for giving the tribe their legal rights for taking the land into trust is the gila bend act. There are very strict conditions and requirements for what the tribe needed to do in order to qualify for being able to take land into trust. The gila bend act is only applicable to the Tohono O’odham tribe. This is very fact specific. So in terms of the slippery slope argument of whether this is going to lead to other tribes or other instances of tribes taking land into trust in the middle of Los Angeles or New York City, I understand those arguments, but I think they're going to be extremely difficult legal challenges for that to ever occur.
Ted Simons: What about in parts of the Phoenix area, as opposed to New York and Los Angeles and those sorts of places?
Heidi Mcneil Staudenmaier: In terms of other tribes or the Tohono O’odham?
Ted Simons: The Tohono O’odham tribe.
Heidi Mcneil Staudenmaier: The gila bend act was very specific in terms of what the requirements and conditions were. They were limited to how many parcels that they could take into trust. They were limited by how much land they could take into trust and they were limited by the counties. So I think that with those sort of restrictions in mind, it would be very difficult for this same situation to occur again.
Ted Simons: Last question. We've heard critics of this whole thing saying if the Tohono O’odham tribe are allowed to do this, it blows up the gaming compact and all sorts of mayhem will result. Is that valid?
Heidi Mcneil Staudenmaier: There is a separate lawsuit that's pending on that compact issue of whether or not the tribe is allowed to game under the compact because if they want to have class three gaming, they have to have a compact. But that lawsuit is now at the ninth circuit and it is being fully briefed, and I think there probably will be oral argument held later this year. There may be a decision on that next year. So I think that one is in the courts and who knows how that's going to end up?
Ted Simons: It's always good to have you here to explain what is a very complicated and never-ending it seems situation. Thanks for joining us. We appreciate it.
Heidi Mcneil Staudenmaier: Thank you.
Ted Simons: And that is it for now. I'm Ted Simons. Thank you so much for joining us. You have a great evening.
- The U.S. Ninth Circuit Court of Appeals ruled today that young illegal immigrants given deferred deportations can have drivers licenses in Arizona. Governor Jan Brewer had issued an executive order, denying the “Dreamers” licenses. The court said that the young illegal immigrants were harmed by unequal treatment by the state. Laurie Roberts of the Arizona Republic discussed the ruling.
- Laurie Roberts - Journalist, Arizona Republic
| Keywords: immigration
Ted Simons: The 9th Circuit Court of Appeals ruled today that young illegal immigrants given deferred deportation status can have drivers licenses in Arizona. Governor Jan Brewer had issued an executive order denying those licenses. But the court ruled that the young undocumented immigrants were harmed by what the court said was Arizona’s unequal treatment of those granted federal work permits. Supporters of the courts decision reacted at a press conference this afternoon.
The court was very strong in stating that the harm that has been caused to these folks is irreparable. Is continuing, as we all know, this is not a state where you can do without a car, where you can take care of your family without a car as we again all know. This will lead to that finally reversing that vindictive illegal, ugly decision by the state of Arizona.
Today is a day of triumph for all of us here. It's a day of triumph for Arizona DREAMers all across the state. It's the day that we can finally exhale in relief from an inhale that was taken two years ago when governor brewer banned driver's license to all deferred action recipients. She banned us from the ability to drive, she banned us from the ability to be able to further expand our careers and she banned us from having our identities. To me it was a very personal attack because to many people, a driver's license is something that they take for granted but as we have learned for us, it's a lot more than that. A driver's license would allow us to get from one place to another, to finally be able to get to those jobs that deferred action was able to grant us. It would be a way for us to visit our family members, to finally take a road trip without fear and it would be a way to represent ourselves and our identities. So to me when governor brewer made that announcement on August of 15 of 2012, it was very personal. It hurt me very deeply.
Ted Simons: The governor’s office reacted to the court’s ruling by calling president Obama’s deferred deportation program lawless and said that the ruling is especially disturbing because of the recent influx of young illegal immigrants. The governor said the state will continue to fight for the rule of law. Here now to discuss today’s ruling is Laurie Roberts of "The Arizona Republic." You've been following this story a whole bunch of stories but this one, as well. Thank you for being here. Your initial thoughts on a night that wasn't much of a surprise.
Laurie Roberts: Not a surprise at all. You could sort of tell during the arguments that were done a few months ago the tone of the arguments of the three-judge panel that this was the way they were headed. It's very difficult to say that we're going to treat one group of deferred action immigrants one way and another group another and that's essentially what the court found was that it violated the equal protection clause of the U.S. Constitution.
Ted Simons: Talk about that differentiation there because some people are a little bit confused why these folks were treated differently than other folks with the federal work permits.
Laurie Roberts: I think they were treated differently because the governor was in a snit about the fact that President Obama created this deferred action for childhood arrival program. She calls it lawless and says that Congress is the only group that can enact laws to defer deportation status of groups but there are a variety of classifications of immigrants who are here, who have this deferred status. Some of them are victims of crimes in other countries, some of them may be fleeing domestic violence situations and those people have routinely been able to get driver's licenses in Arizona and so the courts is saying why is this group different from that group? The governor would say this group is different from that group because this group got that deferred status as a result of laws passed by Congress whereas the kids got the deferred status because of a lawless directive of President Obama.
Ted Simons: And that -- didn't the state do something last year to expand the ban on the driver's licenses?
Laurie Roberts: They did. After she enacted the ban, people came forward and pointed out well there are other groups who have these employment authorization documents who were able to get the licenses so her response was not to say I guess it's okay, her response was to say well no longer should those people get them, either. But that really didn't wash with the courts. They found that it was a case of basically spite. I believe the word they used was animus.
Ted Simons: I was going to ask you about that. It's interesting to see the court say, first of all, the unequal treatment, they emphasized that but that the governor's actions showed animus to these kids.
Laurie Roberts: It's strong language.
Ted Simons: It seems like it is.
Laurie Roberts: The governor will point out that all three of the judges on this panel were appointed by democratic presidents but it is interesting that one of the three has the distinction of having been appointed both by Barack Obama to this court and Alaska governor Sarah Palin for the Alaska Supreme Court.
Ted Simons: Interesting. Aclu also called it vindictive policy by the governor and the governor's response was that this was outrageous and these sorts of things. Why is she taking such a hard stance on this?
Laurie Roberts: I think she fashions herself the governor who's going to tell this president what to do and it plays to the base and it's an election year. You add up the central American children who are here and now this and a couple of other things going on, and immigration, immigration is firing up the base again. I'm hearing from all the people I heard from in 2010 and the rhetoric is revving up and I guess it's good for Republican politics.
Ted Simons: I was going to ask you about that because her response, a lot of it was political in nature, mentioning that the three judges were appointed by democratic presidents, mentioning the Obama policy as being lawless and all these sorts of things. There was a lot of name dropping and name calling in there which seemed a little again pretty harsh for a governor statement.
Laurie Roberts: I would think it's harsh for this governor. She's been harsh all along on President Obama's treatment of illegal immigrants and the perceived lack of border enforcement. I think it's right in line. And the interesting thing is what nobody's talking about is let's just take care of this problem. Most people in this country would say that this particular group of immigrants who are here illegally, the childhood arrivals, are the most sympathetic group of all and that ultimately we are going to have to incorporate them into this the only country that they've ever known. Why don't we just get on with it and fix the problem?
Ted Simons: Do most people in Arizona feel that way?
Laurie Roberts: I have seen polls that stated we do. We are only one of two states that I know of that deny driver's licenses to this group. At least 45 do. Only our state and the state of Nebraska do not and now, of course, as of today, we grant them, as well.
Ted Simons: How far is the state going to go on this? Fighting this tooth and nail?
Laurie Roberts: They have to. They've put the money and the time into it at this point. Remember this is just a preliminary injunction. You've got to go back and fight the merits of the case at the federal court level, at the district court level so this will be going on for a while. It would be far easier if we just took care of the problem and solved it.
Ted Simons: Some of these, it's supposed to be a two-year deferment here. Some of those kids are going to be past the deferment.
Laurie Roberts: It's renewable.
Ted Simons: Okay.
Laurie Roberts: Those things are renewable. It was started in August of 2012, the first group of renewals are coming up now. We have 20,000 young Arizonans that this applies to.
Ted Simons: So basically, we watched what happens as far as the state is concerned going after this particular ruling. And it will never end will it?
Laurie Roberts: No, it won't because it's good politics.
Ted Simons: All right, it's always a pleasure.
- The Citizens Clean Elections Commission is investigating whether State Attorney General Tom Horne broke any campaign laws. Horne filed a suit Thursday to stop that investigation. Tom Collins, Executive Director of the Citizens Clean Elections Commission, will talk about the suit.
- Tom Collins - Executive Director, Citizens Clean Elections Commission
| Keywords: politics
, tom horne
Ted Simons: Speaking of Tom Horne, the attorney general has filed suit to stop an investigation by the Citizens Clean Elections Commission. That investigation is looking into claims that Horne broke campaign laws. Joining us now is Tom Collins, executive director of the Citizens Clean Elections Commission. Good to have you here, thank you so much for joining us. We should mention again we are working with you to put on these statewide debates for state offices and such.
Tom Collins: That's correct.
Ted Simons: Attorney general filed suit to stop this investigation. Your initial thoughts?
Tom Collins: Well, I think that, you know, we've looked at this matter, the commission had a vote in front of it about two weeks ago about whether or not to initiate an inquiry and that was based on a recommendation that I made and the commission has a rule that says before I go forward with anything in terms of an investigation with a candidate who's not part of the public financing system that I should go to them and ask them for authorization. That's what we did. It was a procedural vote by the commission, and now, the attorney general has brought a suit to stop that inquiry from going forward.
Ted Simons: And the suit claims that which commission does not have authority over non-clean election candidates.
Tom Collins: That is the upshot of Mr. Horne's complaint and the complaint that his attorneys have filed. That's an issue that the commission clearly stated its position on and the statute itself is plain. The voters wanted a clean elections system that included independent campaign enforcement by the clean elections commission. The statute is very plain and if it wasn't plain enough, the Arizona Supreme Court in a 2004 case said that the duty to do enforcement is a paramount duty that does not relate to public financing and so the commission is simply following the statute and the Supreme Court has confirmed what that statute's plain language is.
Ted Simons: The lawsuit also claims that this is not a campaign finance issue and thus clean elections should not have authority over the situation. Your thoughts?
Tom Collins: Well, again I think that this is a preliminary -- we're at a preliminary stage where we're outlining the nature of what the allegations of the complaint are and I've outlined the response. Mr. Horne's had an opportunity to respond to the commission and the commission voted to go forward. He'll have an opportunity to make any number of legal arguments procedurally throughout the process. There's judicial and administrative review. The fact of the matter is that the clean elections act sets forth the law that's applicable to candidates whether they take public financing or not and that law involves reporting and it involves limits, it involves those kinds of things that are involved in the allegations and that's the substance of our recommendation.
Ted Simons: You mentioned reporting and limits. Again, the suit claims that what you're investigating, the claims especially by the former worker Sarah Beattie, nothing to do with clean elections, the commission itself, nothing to do with what the commission has authority to look at. Again, your response.
Tom Collins: Well, I think -- I just disagree. And I can say I disagree because I've written this recommendation, the commission has unanimously endorsed going forward with the inquiry. I guess what I would say to folks, though, is that the facts are not out yet. We have an inquiry going. We are moving forward in a manner that will ensure that we get the facts and allow the commission to make a deliberate decision, which is subject to its own set of judicial and administrative appeals. So I guess the answer to that question is I don't know what the facts are yet because we haven't established them. We have a recommendation I've written based on the response Mr. Horne provided to the complaint and under that set of facts, there is certainly sufficient evidence and sufficient legal basis, the legal basis is clear that there's a clean election act issue. The question is how it resolves itself is before us.
Ted Simons: What about now, this new law that only the secretary of state and the attorney general can investigate those who are running with private funds. Where does that new law come into play here?
Tom Collins: It's an important thing, that there's been a lot of misinformation about. And what I will tell you about it is this Is that the legislature amended that bill in order to pass it in the first place. They had to amend it to narrow it to exclude article two of chapter six in title 16. Now that’s a very complicated sounding sentence, but it's actually a simple concept. That's the clean elections act. In other words, in order for this bill to pass, it had to exclude the clean elections act and therefore, make it relatively ineffective. I don't know what the sponsor thinks he was doing. What I can tell you is that the plain language of the bill and the clear language of the clean elections act when you put them together, there is simply no impact on the commission's authority to move forward with this inquiry.
Ted Simons: So even though the -- it's not supposed to be retroactive here, and I think it goes into effect July 24th or something.
Tom Collins: All bills do.
Ted Simons: You're saying that this does not affect what you are doing or should not affect what you are doing?
Tom Collins: That is correct. The commissioners have sworn a duty to uphold the Constitution and they've sworn a duty to enforce the act. The act was not affected in any -- at all by the bill and that's because the bill distinguishes between article one of chapter six and article two. I hate to go back to that, something that sounds so technical but it is incredibly important that these words mean what they say. And just as a legal matter, titles are made of chapters, which themselves are made of articles. So if you say don't do article one to a group that is enforcing article two, it's not meaningful and that's what our position is. And I think that’s clear.
Ted Simons: You're saying there's cherry picking going on there?
Tom Collins: The bill, in order to get it through the legislature they amended it to narrow it and then when it passed, some sponsors of this bill came forward and said oh, we really did restrict the clean elections restriction. Well you can't do both. You can't both amend a bill like they did to narrow it and then when it passes say aha, it did what we were saying the whole time.
Ted Simons: Has clean elections ever removed a privately funded elected official from office?
Tom Collins: No.
Ted Simons: Has clean elections ever fined a privately funded elect official in office?
Tom Collins: That's a good question. I don't know. I don't know the answer to that. I can say that the commission has fined nonparticipating candidates. The most famous example was Matt salmon back in 2002, which a lot of folks may still remember. There was a fine levied in that case. I can't recall the exact resolution but there was a vote to fine him as far back as then. This has been something that the commission has been doing since its inception. So it's simply false to say that the commission has never enforced against a nonparticipating candidate.
Ted Simons: So what's next in all this?
Tom Collins: Well, the commission will move forward. We'll move forward with our inquiry in an effective manner that is not going to be -- and at the same time, this lawsuit's been filed. There's a scheduling conference on Friday, and then there will be a briefing scheduled. Probably this won't be fully briefed before the first week of August as things worked out generally. That's my prediction but in the meantime, the commission is taking the steps, me and my staff are taking the steps necessary to ensure that we get the facts that are necessary to develop a recommendation if there is one to be made at this point.
Ted Simons: Alright, good to have you here, thank you for joining us. We appreciate it.
Tom Collins: Thank you.