Judge: Law lets O'odham build casino by Glendale

Whether state can sue to halt it is still open issue
2013-05-08T00:00:00Z Judge: Law lets O'odham build casino by GlendaleHoward Fischer Capitol Media Services Arizona Daily Star

PHOENIX - A federal judge on Tuesday rejected the latest efforts by the state to block the Tohono O'odham from building a casino on the edge of Glendale.

U.S. District Judge David Campbell threw out claims by Attorney General Tom Horne and two Maricopa County tribes that construction of a casino on the site violates the specific terms of the 2002 voter-approved deal allowing gaming on Indian reservations.

The full text of law approved by voters "contains no such limitation," Campbell wrote in his 28-page ruling. Tuesday's ruling is a major setback for those trying to block construction of the Glendale casino.

It comes about six months after the 9th U.S. Circuit Court of Appeals, in a separate challenge by the state, ruled Congress did not illegally allow the tribe to create a reservation on the land on the edge of Glendale. That ruling is important because the tribe needs reservation status to allow casino construction.

But Campbell did offer foes one glimmer of hope.

While limits on casino locations were not written into the law, Campbell acknowledged the challengers' contention the Tohono O'odham knew publicity surrounding the 2002 election clearly indicated "the voters understood there would be no such casino" built in the Phoenix metro area.

Campbell said the state and the other tribes say the Tohono O'odham "actively encouraged this understanding of the compact while secretly planning to build a casino." That was backed with notes taken by Tohono O'odham Tribal Council officials before the 2002 vote about acquiring land west of Phoenix, putting it into a shell company, and stressing the "need to keep it quiet" during negotiations.

Campbell said he wants to hear more legal arguments before deciding whether this claim is sufficient to support a lawsuit to halt the casino.

Zuzette Kisto, publicist for the Gila River Indian Community, one of the challengers, was disappointed, saying the ruling undermines the importance of legislation introduced last month by U.S. Rep. Trent Franks, R-Ariz., that would effectively block the tribe from building on the Glendale site until at least 2027.

But Tohono O'odham Chairman Ned Norris Jr., who opposes the federal legislation, said Tuesday's ruling "underscores the fact that opponents are only interested in preserving their market share." And the Gila River Community does have the closest casino to the Glendale site.

The initiative

The 2002 initiative pushed by a consortium of tribes gave them the exclusive right to operate casinos in the state in exchange for a share of the profits.

It was promoted with promises gaming would be limited to existing reservations, with specific limits on the number of casinos each tribe could possess.

The following year the Tohono O'odham bought a parcel of land, near Glendale, near where the Arizona Cardinals stadium eventually would be built, under a 1986 federal law allowing the tribe to replace reservation lands lost to flooding from the Painted Rock Dam.

Attorneys for the state and the other tribes contend land purchased after the 2002 initiative cannot legally have gaming under the terms of what voters had approved. But Campbell pointed out that a strict reading of the voter-approved compact entitles the Tohono O'odham to do exactly what they did.

Voters did require gaming to be "located on the Indian lands of the tribe." But the initiative also says gaming can be allowed on lands acquired later if they were "taken into trust as part of a settlement of a land claim," which the Glendale site was.

Casino limits

Part of the claim of challengers is based on a brochure of "common questions" distributed ahead of the election. One asks whether the measure would limit the number of tribal casinos in Arizona. The answer: Under Prop. 202, there would be no additional facilities authorized in Phoenix, and only one additional facility permitted in Tucson.

Attorneys for the Tohono O'odham conceded they helped pay for the brochure. But they said it was inaccurate because it was drafted by "public-relations consultants" who "did not necessarily seek to depict the compact with legal precision."

But Jane Hull, who was governor at that time, made similar statements.

The state is also relying on notes from the O'odham Tribal Council at meetings before the 2002 vote that not only suggest buying land west of Phoenix but putting it in a "shell company" to "keep it quiet" while negotiations with the state over the gaming agreement were taking place.

Campbell said that requires him to look further into what the state understood when the gaming compacts were negotiated - and what the tribe knew about the state's understanding - in determining whether the tribe effectively agreed not to build a casino near Glendale.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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