Intense legal fight over proposed Glendale casino moves to 9th Circuit

The fight over whether a Southern Arizona tribe can build a massive casino near Glendale’s entertainment district moved to the 9th U.S. Circuit Court of Appeals Monday.

The city is contesting a trial court’s decision to uphold the Department of Interior’s decision to create reservation land out of 54 acres of unincorporated land near 95th and Northern avenues. The Tohono O’odham tribe wants to turn the parcel into reservation land under the Gila Bend Indian Reservation Lands Replacement Act, a 1986 federal law that allowed the tribe to replace nearly 10,000 acres of land that was destroyed by flooding from the federally-built Painted Rock Dam.

Tohono O’odham must convert the land to reservation land to build the casino.

During the hour-long argument in front of a three-judge appellate panel was the interpretation of language in a provision in the Gila Bend Act that forbids the federal government from creating a reservation “within the corporate limits of any city or town.”

Attorneys for Glendale argued that the county island is ineligible to become a reservation because it is surrounded by Glendale.

“This land is within Glendale’s corporate limits, and that should be the end of the matter,” said Catherine Stetson, a Washington, D.C.-based attorney representing Glendale.

However, the Department of Interior found in July 2010 that the parcel is not within the corporate limits of Glendale as the term is used in Arizona law and courts. The land had never been annexed by the city and doesn’t receive city services.

Seth Waxman, a Washington, D.C., lawyer representing the Tohono O’odham told the court that the Interior Department’s interpretation was “correct and reasonable.”

Stetson said one of the options the court has if it finds the language to be ambiguous is to send the case back to the Interior Department for clarification, an exercise Waxman said would be pointless.

“The (agency) has grappled with this question,” Waxman said.

The Gila River Indian Community was also part of the arguments Monday.

Gila River, which has casinos in the Phoenix metro-area and the only West Valley casino, contends that the Tohono O’odham has already purchased all of the land allowable under the Gila Bend Act, but never got to present that information to the Department of the Interior. Gila River is now asking the appellate court to send the case back to the agency for reconsideration, a request made earlier of U.S. District Court Judge David Campbell. Campbell rejected Gila River’s request in his March 2011 decision, saying Gila River had waived the issue by not presenting it to the Interior Department.

Patricia Millett, a Washington, D.C., lawyer representing Gila River, said the waiver principle shouldn’t apply because the agency proceeding was ex-parte, or done only on behalf of the Tohono O’odham.

“We fought very hard to overcome the nature of this ex-parte proceeding and did everything we could to get our foot in the door,” Millett told the appellate panel.

Millett said Tohono O’odham has bought around 16,000 acres with $30 million given to it by the federal government under the Gila Bend Act. According to briefs filed with the court, Tohono O’odham used complex transactions to cover up that the money from the Gila Bend Act was being used to buy more land than the law allowed.

Millett said the Gila Bend Act should be interpreted as a simple land swap for a nation that has lost its lands at the hands of the U.S. government.

“Or you can view it as the (Tohono O’odham) Nation does here, as essentially a shopping spree where they can go out and buy land – all the land their money will buy – and sit on it,” she said. “They get to wait and sit back and pick and choose to see how the land develops.”

Tohono O’odham bought the land in 2003 in secret and didn’t announce its casino project until early 2009. For the tribe to build a casino, the land would have to be deemed a reservation. The land is within a mile of University of Phoenix Stadium, the adjacent entertainment district and close to a high school.

Glendale and Tohono O’odham have been in court for more than three years, since the announcement of plans to build a massive casino on the land, which is about 160 miles from the tribe’s headquarters in Sells and about 56 miles from its original land near Gila Bend.

Tohono O’odham has been the more successful in court so far, winning a suit in which the city asserted that it had annexed the land before the tribe bought it and winning a U.S. District Court decision that found a 2011 Arizona law that would have allowed Glendale to annex the land is preempted by federal law.