PHOENIX - Congress did not illegally allow a tribe to create reservation land on the edge of Glendale, a federal appeals court ruled Tuesday.
In a split decision, the majority of a three-judge panel of the 9th U.S. Circuit Court of Appeals rejected arguments by attorneys for the state and Glendale that a 1986 law allowing the Tohono O'odham Nation to acquire reservation land infringes on the sovereign rights of the state. The judges said there is no basis for such an argument.
The majority also dismissed the contention the land at issue was within the corporate limits of the city of Glendale, a crucial point because the 1986 law only permits the tribe to expand its reservation in unincorporated areas.
Both the state and city concede the 54 acres at issue are not in the city of Glendale itself. But they argued the property is surrounded by the city, making the county island "within" the city's limits.
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But Judge Margaret McKeown, writing for the majority, accepted the determination by the U.S. Department of Interior that the property is outside of Glendale, and therefore eligible for reservation status.
Tuesday's ruling is the latest victory for the O'odham in its efforts to construct a $550 million complex, featuring a casino, on the west side of the Phoenix area. Previous state and federal court rulings have also rebuffed other efforts to halt the plans.
State Gaming Director Mark Brnovich called Tuesday's decision "a real game changer."
"You are likely to have a casino right in the middle of a large metropolitan area," he said. "And I think that creates a certain dynamic, and I think a lot of pressure for additional gaming."
Brnovich said when voters approved tribal gaming in 2002 it was with the understanding it would be limited to existing reservations. What they did not anticipate, he said, was a casino virtually next to the Arizona Cardinals stadium and across the street from a high school.
He believes that once there is gaming near commercial and residential development, lawmakers may decide the tribes should not keep their existing monopoly on operating casinos.
House Speaker Andy Tobin, R-Paulden, already has proposed allowing slot machines, blackjack and poker games to be run at up to 10 non-reservation locations. He said the plan would help the state with its finances: Operators would give Arizona a bigger share of profits than do the tribes.
Gregory Mendoza, governor of the Gila River Indian Community, also argued there was a "public promise" made to voters in 2002 that there would be no gaming beyond current reservations.
The Gila River community has a particular interest in the fight because it currently operates the closest casino to the area. An appeal is being weighed. That possibility annoyed O'odham tribal Chairman Ned Norris Jr.
"It's time for those special interests behind the delay tactics that have held up this project to step aside and allow for job growth and economic opportunity to come to the West Valley," he said.
In his dissenting opinion, Judge N. Randy Smith the majority's interpretation of what is within corporate limits is "contrary to the plain language of the statute." He said Arizona law gives cities some powers to regulate land use outside their incorporated areas, which he said is justified and should be given deference by the courts.
Upholding the plans, McKeown said the Constitution specifically empowers Congress "to regulate commerce … within the Indian tribes." And she said the Supreme Court has interpreted this broadly, saying that language gives Congress complete power to legislate Indian affairs.
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