Navajo Times article Judge quashes group's motion on casino site

Navajo Times
Judge quashes group’s motion on casino site.

BY BILL DONOVAN
SPECIAL TO THE TIMES
Thursday, December 09, 2010

WINDOW ROCK-A state judge in Flagstaff has rejected efforts by a Navajo citizen’s group to alert potential investors that land for the planned Twin Arrows casino could become entangled in a lawsuit in Navajo Nation court.

The Forgotten People, a grassroots organization of families affected by the Bennett Freeze and the Navajo-Hopi partition, filed a motion in Coconino County Superior Court to know the casino site could be encumbered by a lien.

Called a “lis pendens” (legalese for “suit pending”), the motion was filed in state court because the Navajo Nation does not have a lis pendens law on its books, said Marsha Monestersky, program manager for the Forgotten People.

However, Superior Court Judge Don Slayton sided with attorneys for the Navajo Nation and quashed the motion in a ruling issued just before Thanksgiving.

The Forgotten People are challenging the uses of money from the Navajo-Hopi Rehabilitation Trust Fund to develop the casino.

The lis pendens refers to the group’s lawsuit in Window Rock District Court, which seeks an accounting of how the tribe is spending money from the trust fund. The fund was set up to benefit Navajo families who live in the Bennett Freeze areas, where no development was allowed for more than four decades because of the land dispute between the Navajos and the Hopis.

The organization is trying to find out, among other things, how much of the fund has been used to develop the proposed Twin Arrows casino east of Flagstaff.

The tribe maintains the casino would directly benefit people in the former Bennett Freeze area by providing jobs, a point the citizen’s group disputes.

The Navajo Nation Gaming Enterprise purchased a 405-acre tract of land on Aug. 16 and then deeded it to the Navajo Nation for no charge. The site will be leased back to the enterprise so it can build a $120 million resort and casino – the most ambitious of six gaming facilities planned by the enterprise – over the next two years.

The land has been put in trust by the Interior Department. Under federal laws, tribes can build casinos only on trust land.

Monestersky said the federal laws dealing with the establishment of the Rehabilitation Trust Fund and the land purchase specify that the money and land be used to benefit the Navajo families in the Bennett Freeze area. Her organization wants to be sure that any monies from the Twin Arrows project go to that purpose.

While the casino isn’t involved directly in the trust fund dispute, the litigation filed by the Forgotten People could have caused major problems in getting other financing to build the casino, said Bob Winter, CEO of the gaming enterprise.

The enterprise has obtained part of the financing from institutions that require the casino site has no encumbrances on it. The lis pendens notice would have announced that such encumbrances were in the offing.

“Any monies we pay to the tribe go into the general fund and we have no problem in having it to back to help the families living in the Bennett Freeze area if that is what the tribe wants to do with it.” Winter added.

The tribe’s policy, however, has been to funnel casino profits to Window Rock, with little of the money returning to the host chapter.

The Forgotten People asked Slayton to postpone his decision so the organization could hire an attorney, but Slayton instead ruled in favor of the Navajo Nation and quashe the motion.

Monestersky contends that the state court shouldn’t have acted as it did because the related case is open in tribal court. Attorney’s for the Phoenix law fim of Lewis and oca, representing the tribe, argued that it was imperative that the cloud hanging over the deed be lifted as soon as possible.

Monestersky said she could not understand why the state court had to make a decision so quickly since there was no emergency.

Winter said the legal dispute has had no effect on the casino financing and the project is on schedule.

Monestersky said her organization is continuing its efforts in tribal court to get an accounting of expenditures from the Rehabilitation Trust Fund.

While Navajo Nation officials wouldn’t discuss the trust fund since it is now involved in a lawsuit, they did talk about efforts to prod the federal government to fulfill its promises to provide funds to bring the infrastructure in the area up to modern standards.

About 6,000 Navajos live in the former Bennett Freeze area and endure conditions far below those in most of the U.S. Navajo officials say it will cost hundreds of millions of dollars to bring the freeze area up to scratch.

Roman Bitsui, director of the Navajo-Hopi Land Commission, cited a pledge by the areas representative in Congress, Ann Kirkpatrick, D-Ariz., to seek funding for infrastructure improvements in the former Bennett Freeze area.

The Forgotten People, however, want to know what happened to the millions already put into the Rehabilitation Trust Fund for the same purpose.

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