State loses Tohono land battle
PHOENIX — Congress didn't act illegally in allowing a tribe to create reservation land on the edge of Glendale, a federal appeals court ruled Tuesday.
In a split decision, 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 the argument.
The majority also brushed aside the contention that the land at issue was within the corporate limits of Glendale. That issue is crucial, as that 1986 law permits the tribe to expand its reservation, but only in unincorporated areas.
Both the state and city concede that the 54 acres at issue are not in the city of Glendale itself. But they argued that the property is surrounded by the city, making the county island “within'' the city's limits.
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 southern Arizona tribe in its efforts to construct a $550 million complex, featuring a casino, on the west side of the Phoenix area. Various state and federal courts have 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. 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 figures 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 to allow slot machines, blackjack and poker games to be run at up to 10 non-reservation locations, starting horse and dog tracks in Phoenix, Tucson, Prescott Valley and Apache Junction. He figures the plan would help the state with its finances, as the track owners would give Arizona a bigger share of profits than do the tribes.
Gregory Mendoza, governor of the Gila River Indian Community, also argued that there was a “public promise'' made to voters in 2002 that there would be no gaming beyond current reservations.
The Gila River community, however, has a particular interest in the fight because it currently operates the closest casino to the area. A new casino in Glendale likely would draw off customers.
An appeal is being weighed.