The Arizona Court of Appeals has rejected an attempt by a group of activists in Glendale, Arizona to overturn an earlier decision by the city council to drop a lawsuit aimed at stopping the Tohono O’odham from building a 0 million casino adjacent to the town.
The tribe is currently nearing completion of the Desert Diamond Casino – West Valley. It could open before the end of the year.
Last year the city council decided to drop its participation in a lawsuit against the casino and instead came to an agreement with the tribe.
Residents in the community objected and gained enough signatures to try to force a vote of the residents on the council’s action. The Appeals Court has ruled that only legislative actions by the city council are subject to referendum. Voting to end opposition and reaching an agreement with the tribe do not fit into that definition said Judge Michael Brown, writing for the unanimous court.
Proponents of the referendum say that an appeal to the state Supreme Court is being considered.
The city opposed the tribe’s plan to build a casino in Glendale from the moment that it announced the plan in 2009. It fought the proposal strenuously, even to the point of attempting to annex into the city the land that the tribe owned since federal law forbids an Indian casino from operating within a city limit.
It initially supported legislation in Congress to prevent the casino from going forward, but after a change in the make-up of the council voted to oppose the bill. It later signed an agreement with the tribe to be paid $25 million over the next twenty years.
Judge Brown wrote, “Mere expressions of support, and encouraging other entities and individuals to share the same viewpoint, are not substantive measures.” He added, “Allowing a city’s voters to share the ability to control litigation with a city council would result in chaotic, if not absurd, results. In addition, the effectiveness of the judicial system would be compromised if the parties’ settlement agreements and corresponding withdrawals from litigation could later be rejected by voters.”
Opponents of the casino called the court’s ruling, “a lousy deal.”
Tohono O’odham Nation Chairman Edward Manuel hailed the decision: “This is just the latest frivolous lawsuit designed to stop the Nation from bringing jobs and economic opportunity supported by Glendale and the West Valley public.”
Meanwhile the case brought by the tribe against the head of the state’s Department of Gaming in federal court to force it to issue a gaming license for the casino continues.
Earlier this month a federal judge, David Campbell, denied the tribe’s request for an injunction to force the license while the case is decided.
Whether or not the state issues a license for Class III gaming, the tribe has the right to open a Class II casino.
The fact of the Class II gaming factored in the decision of the judge, who noted that an injunction is necessary if one party will suffer irreparable harm if an activity is allowed to go forward.
Judge Campbell ruled: “The Nation asserts that the State’s actions will cost it substantial sums of money, and that the money constitutes irreparable harm because it cannot be recovered from the State due to sovereign immunity. The court finds, however, that the Nation has not shown that ADG’s actions will cost it substantial sums.”
State Attorney General Mark Brnovich told Capitol Media Services: “This sets a terrible precedent,” Brnovich said. “It undermines the promises that were made to Arizona voters that gaming would be limited and well-regulated.”
He added, “You might have somebody drawing bingo balls in Oklahoma and there’s machines all over the country that are playing those instant bingo games where it almost looks and acts like a slot machine.”
Brnovich and Governor Doug Ducey were originally named as defendants in the case brought by the tribe, but were dropped from the case when the judge, David Campbell, ruled that they had sovereign immunity.
The lawsuit was sparked when Director of Arizona Gaming Daniel Bergin sent a letter to the tribe saying that he didn’t intend to provide the required certifications for the Tohonos to operate Class III machines.
Bergin’s reasoning for not certifying the casino is his contention that the tribe committed fraud in 2002 when it did not reveal that it planned to build a second casino in Maricopa County at the same time that it was negotiating a gaming compact with the state and other gaming tribes. Bergin bases his action on state law that gives his department the authority to provide “extensive, thorough and fair regulation of Indian gaming.” Therefore, the tribe’s potential fraud should be a factor in his decision, he claims.
Tohono Chairman Edward Manuel said that he was confident that the judge would eventually rule in the tribe’s favor. The 3 million-acre Tohono reservation near Sells, west of Tucson, is the second largest reservation in the country.
The tribe is the only tribe in the continental U.S. that was never displaced from its land and was never at war with the U.S. government.