PHOENIX — State officials are trying to delay a federal appellate court hearing on the question of whether the Tohono O’odham Nation can build a casino on the edge of Glendale.
Assistant Attorney General Michael Tryon wants any action pushed back until the U.S. Supreme Court rules in a Michigan case on the scope of tribal immunity. Tryon said the outcome of that case could affect whether the state will be able to block the casino.
But attorneys for the tribe are telling the 9th U.S. Circuit Court of Appeals they see something more sinister in the move.
Danielle Spinelli, lead counsel on the case, said the move by the state has nothing to do with the legal issue of tribal immunity before the high court. Instead, she said, what the state wants would push the Glendale case, being briefed next month, back until at least next May.
And that, she said, will give foes of the casino new opportunities, unable to win in court, to find other ways to try to block the casino. She pointed out the various efforts to do that, including trying to let Glendale annex the property and federal legislation to overturn the tribe’s right to build a casino there.
“Arizona should not be permitted to delay the progress of this case in order to continue these efforts,’’ she wrote.
Hanging in the balance is the tribe’s plan for a $550 million complex near the Arizona Cardinals football stadium that would include shopping, a hotel and, most notably, a casino.
Foes, including the state, the city and other nearby tribes, have fought the move since it was made public. They contend the 2002 voter-approved initiative that gives tribes the exclusive right to operate casinos in Arizona specifically precluded new ones from being built in the Phoenix area.
But the Tohono O’odham Nation is relying on a little-noticed provision that permits new casinos on property that any tribe acquires as part of a land settlement with the federal government. And a 1986 federal law to compensate for other property flooded by a dam project specifically permitted the tribe, based in Pima County, to buy land in Maricopa County.
That federal law allows the tribe to seek reservation status for that land, a necessary precursor to operating a casino.
Federal courts have rebuffed various legal challenges.
In this case, U.S. District Judge David Campbell rebuffed the contention by foes that the intent of a provision allowing the tribe to build an additional casino was to have it located on land already part of its existing reservation. The judge said the actual language in what voters approved — and what the tribes and the state all signed — does have that escape clause for land settlement deals.
Campbell also ruled it’s legally irrelevant whether the state — or even voters — thought the deal they were approving precluded a new casino in Glendale.
Opponents, including the state, took the case to the 9th Circuit. But now Tryon wants the appeal he filed delayed.