Despite losing a Ninth Circuit Court of Appeals ruling on March 29 in favor of the Tohono O’odham Nation’s casino in Glendale, the state of Arizona is not yet throwing in the towel.
Federal Judge David Campbell has allowed the state to use an argument that it debuted in an earlier court case to defend itself against a lawsuit brought against the state’s gaming department by the tribe, which is demanding that its Class III games be certified.
In filling the lawsuit the tribe lost its sovereign immunity against such suits, which allowed the state to countersue and claim that the tribe acted fraudulently when in 2002 it negotiated a gaming compact with the state and other tribes—by telling its negotiating partners that it agreed that no new casino should open in the Phoenix Valley. At the same time, the suit alleges, the tribe had already planned to buy land in Glendale.
The 9th Circuit already ruled earlier this year that the tribe did not violate the wording of the compact that it signed, but did not rule as to whether the tribe acted fraudulently.
Writing for the three-judge panel Judge Carlos T. Bea wrote, “The compact expressly authorizes Class III gaming (table card games and slot machines) on the ‘Indian Lands’ of the Nation. The Compact defines ‘Indian Lands’ as lands defined in 25 U.S.C. Sections 2703(4)(A) and (B) and subject to the provisions of 25 U.S.C. Section 2719. Section 2719 provides that although Class III gaming is generally barred on land taken into trust after the effective date of the Indian Gaming and Regulatory Act (IGRA), that bar does not apply to land taken into trust as part of a settlement of a land claim.”
Bea added, “After the compact was approved, the Nation purchased land in Glendale, Arizona, with settlement funds it had acquired under the Gila Bend Indian Reservation Lands Replacement Act (LRA) after reservation lands were destroyed in flooding. The United States took a portion of the Glendale area land, known as Parcel 2, into trust for the Nation pursuant to the LRA.”
The 9th Circuit held that the land taken into trust as part of the settlement of a land deal with the tribe could be put into trust for a casino. It also ruled that the tribe’s sovereign immunity protected it from lawsuit as to whether it had committed fraud in its negotiations for a compact. However, by suing the state itself, the tribe lost that immunity regarding that issue.
The Gila River Community, an opponent of the Glendale casino, said that it will consider appealing again to Congress to pass a law preventing the Tohonos from offering Class III gaming.
GRIC spokesman Manuel Johnson declared, “The decision today by the Ninth U.S. Circuit of Appeals is disappointing and reinforces the urgency for Congressional action because Tohono O’odham’s use of sovereign immunity continues to prevent claims fraud and misrepresentation from being adjudicated by the courts.”
He added, “Simply put, the Nation broke its promise to Arizona voters and to its sister tribes across the state by negotiating in bad faith and opening a casino off traditional reservation lands — something Nation leaders for years assured one and all they would not do.
