When is a reservation not within a city’s limits? When the Department of the Interior says it’s not.
The department’s Bureau of Indian Affairs Assistant Secretary Kevin Washburn ruled two weeks ago that the land that the Tohono O’odham tribe of Arizona wants to put into trust for its West Valley Casino, land in Maricopa County that is surrounded on three sides by the city of Glendale and on one side by Peoria, is not technically within a city. If the land was within a city’s boundaries that would, by federal law, prevent the tribe from putting the land into trust.
The ruling brings the tribe’s planned $500 million casino closer to reality, although it does not yet permit the tribe to offer gaming on the land. The Indian Gaming Regulatory Act generally does not allow land acquired by a tribe after 1988 to be used for gaming, but there is an exception for land acquired through a land settlement.
The two gaming tribes that would be affected if the Tohonos build their casino have vowed not to give up the fight.
The 54 acres that the Tohonos purchased in 2000 is located at 95th and Northern avenues, near the Cardinals stadium. The BIA’s ruling is nearly the last step before it can put the land into trust. The casino, if built, would join the tribe’s existing three casinos in the southern part of the state.
The tribe has won a nearly unbroken string of legal battles since 2009, when it announced its plans. The lawsuits were brought by the city of Glendale and by other gaming tribes, including the Gila River and Salt River Pima-Maricopa Indian communities who oppose putting a rival casino so near to metro Phoenix.
They argue that the 2002 tribal state gaming compact that all of the state’s tribes have signed and which the voters approved as Proposition 202 does not allow more casinos near Phoenix. It also limited gaming to existing reservations. The Gila River tribe has three casinos near Phoenix and the Salt River tribe operates two casinos near Scottsdale.
The tribe acquired the land with money paid to it by the federal government when its original 10,000-acre reservation land was flooded by the creation in 1978 by the Painted Rock Dam near Gila Bend. The act of Congress (the Gila Bend Indian Reservation Lands Replacement Act of 1986) stipulated that the land the tribe acquired could not be “within the corporate limits” of a city. The BIA ruling confirms that is true of the land in question.
Tohono Chairman Ned Norris Jr. hailed the ruling: “The nation is eager to move forward to use our replacement land to create thousands of new jobs in the West Valley,” he said.
However Gila River Governor Gregory Mendoza called the casino the Tohonos want to build, “a direct threat to the balance of tribal gaming in our state.” Mendoza added that the wording of the 1986 law under which the tribe bought land is “ambiguous,” in its wording and called on Congress to “decide this matter and uphold the will of Arizona’s voters.”
Salt River President Diane Enos said the BIA ruling opens the possibility of the Tohonos creating other “islands” near Phoenix for casinos. “The Tohono O’odham Nation has asserted a right to create three additional Indian reservations on county islands in Maricopa County to locate casinos. This is why many Valley mayors have been standing by tribes in asking for a resolution by Congress, fearful that their city is next.”
Candidate for Arizona attorney general, Mark Brnovich, who formerly was the gaming director of the state, says the ruling has broad ramifications. Brnovich, quoted by Indianz.com, said, “This isn’t just about a casino,” Brnovich said. “This is a sovereign nation which will basically have territory, land in the heart of Glendale.”
Not everyone in Glendale oppose the casino. Councilman Sammy Chiversa, who represents a district near the proposed casino, told the Daily News-Sun, “The rallying cry from everyone opposed to the project was they couldn’t do it, it wasn’t allowed. But now the Department of Interior said the Tohono O’odham has been doing everything the right way.”
The tribe says the casino would create 3,000 local jobs and generate $300 million in economic activity.
However, two other council members on the seven-person board disagree. Manny Martinez and Yvonne Knaack say the casino would suck away business from existing merchants while not giving much back. Martinez declared, “They pay no taxes, no impact fees; we stand to gain really nothing. It’s not going to bring us money.” In fact, says Martinez, it will cost the city in additional police and infrastructure expenditures.
The BIA ruling is not the last word. The House of Representatives has already adopted a bill, H.R. 1410, the Keep the Promise Act, which would prevent more Phoenix casinos, although the Senate has not moved on the legislation. Different parties control the two chambers. Arizona’s two senators, John McCain and Jeff Flake plan to hold hearings on the bill this month on the Senate Indian Affairs Committee.
Tohono tribal officials commented that the DOI ruling “underscores that H.R. 1410…would set a dangerous precedent by undoing the very rights that the United States has yet again confirmed in favor of the Nation.”
In 2013 a U.S. District Court ruled that nothing in writing prevents another casino in the Phoenix area. The 9th U.S. Circuit Court of Appeals confirmed that ruling, but asked for clarification from the Department of the Interior as to whether the land was actually within the boundaries of Glendale. The department’s ruling meets that requirement.
That should lead to a final ruling by the 9th Circuit in the case.
However, the city of Glendale says it may challenge the decision in court.
