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Appeals court upholds decision on Glendale land being eyed for tribal casino

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Tuesday, Sept. 11, 2012
By Cale Ottens
Cronkite News

WASHINGTON – A federal appeals court Tuesday upheld a government decision creating Indian reservation land in the heart of Glendale that is being eyed for a Las Vegas-style tribal casino.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals said the Interior Department “reasonably applied” the law when it ruled that 54 acres of Maricopa County land surrounded by the city of Glendale could become reservation land for the Tohono O’odham.

The ruling was immediately criticized by the office of Arizona Attorney General Tom Horne, who said in a prepared statement that the state would appeal.

“Today’s 9th Circuit majority opinion is another example of the erosion of Arizona’s rights in violation of the 10th Amendment to the Constitution,” the statement said.

At issue is a parcel of land that the tribe bought in Glendale in 2003. The land was purchased under a federal program that let the Tohono O’odham buy up to 9,880 acres of land in Arizona to replace a similar amount of tribal land near Gila Bend that was flooded beginning in the late 1970s after the construction of a federal dam.

The Gila Bend act said the tribe could ask the federal government to hold lands in trust – or designate them reservation lands – if they were in Maricopa, Pima or Pinal counties and if they not within a municipality.

The Glendale land is not part of the city but is a “county island,” Maricopa County land completely surrounded by city land.

In 2009, the tribe announced plans to build a casino on the land and asked the Interior Department to put the land in trust.

Glendale officials objected and tried to annex the land, saying Interior was wrong to let the Tohono O’odham take ownership of the property, which is miles from any of the tribe’s other reservation lands.

But in 2010, the Interior Department determined that the parcel was eligible to be held in trust. The fight has sparked lawsuits and legislation that have drawn in other tribes, and governments and elected officials at the local, state and federal levels.

“To say this plan has been controversial is an understatement,” the court said in its ruling. “But the strong feelings and emotional drama of the casino fight do not dictate the outcome here.”

The court rejected Glendale’s argument that the land was within its boundaries simply because those boundaries encircled the parcel. It also rejected claims that the tribe has purchased more land than allowed under the Gila Bend act, saying the act only limits the amount of land that can be held in trust.

“The (Tohono O’odham) Nation has the right to buy and sell land just like other persons or entities,” the majority of the court panel said.

But in a strongly worded dissent, Circuit Judge N. Randy Smith challenged the majority’s argument that the island is not within the borders of Glendale. He called the federal government’s decision to hand the land over to the tribe an intrusion on state rights.

“The transfer of Arizona’s sovereign authority, over land enclosed in one of its major cities, is a significant encroachment on Arizona’s state interests, regardless of how Parcel 2 (the property) is ultimately developed,” he wrote.

Smith said the casino simply would not be a good fit for the “family-oriented” community near Glendale.

“The fact that taking Parcel 2 into trust would create the very real potential that a new casino would be built across the street from a high school, a quarter-mile from churches, and within Glendale’s carefully developed residential area (where millions of dollars have been invested) understandably heightens the state’s concerns,” he wrote.

Smith also noted that the decision-making process on trust lands does not require formal proceedings or public hearings.

Horne’s statement echoed Smith’s.

“The court allowed sovereign Arizona land within the city of Glendale to be removed from sovereign land and made part of the Tohono O’odham Nation Indian reservation, where it can conduct casino gambling and not be subject Arizona laws or tort liability,” the statement said.

Glendale officials said in a statement Tuesday that the city would review the ruling before deciding what steps to take.

That decision would be made in consultation with “other parties involved, including the Arizona governor, Arizona lawmakers, Arizona Attorney General’s Office, business leaders and 12 Native American tribes in our state – including the Salt River Pima-Maricopa Indian Community and Gila River Indian Community who recognize the clear detrimental effect of the Tohono O’odham’s plans,” the city’s statement said.