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Federal court again rejects attempt to block Glendale casino

The Tohono O’odham Nation acquired 135 acres in Glendale that converted to reservation land, where the tribe will soon open the Desert Diamond-West Valley resort and casino. (Photo by Megan Siquieros/Desert Diamond)

The Tohono O’odham Nation acquired 135 acres in Glendale that converted to reservation land, where the tribe will soon open the Desert Diamond-West Valley resort and casino. (Photo by Megan Siquieros/Desert Diamond)

A federal appeals court this morning on Tuesday slapped down yet another bid by state officials and other tribes to block the Tohono O’odham Nation from conducting full-blown gaming at its Glendale casino.

In a unanimous ruling, the 9th U.S. Circuit Court of Appeals rejected arguments that the deal negotiated between the state and the tribe does not permit the Tohono O’odham to operate a casino on land that was not part of its reservation at the time. Justice Carlos Bea, writing for the panel, said it’s irrelevant whether state officials thought — and even contend they and the voters who approved the deal were led to believe — that such gaming was not permitted.

Bea pointed out that the agreement, formally known as a compact, was “negotiated at length by sophisticated parties.” And he said the words in that deal are all that matter, no matter what the state and other tribes allege in their lawsuit.

“The language is unambiguous and not reasonably susceptible to the plaintiffs’ interpretation that the compact implicitly bars the nation from gaming in the Phoenix area,” Bea wrote. He said any evidence to the contrary which is not part of the agreement is legally irrelevant “and therefore must be rejected.”

While this litigation has been going on, the tribe has opened the casino on the edge of Glendale with Class II gaming, something the state cannot regulate. That permits them to operate devices that look like slot machines but use a different kind of program to determine winners.

But the tribe still wants certification for Class III gaming, something that would allow for not only different slot machines but also the ability to operate other games like blackjack, poker and roulette.

Neither the state nor the Gila River Indian Community, which stands to lose business to the new casino, appear ready to give up despite Tuesday’s ruling affirming the right of the tribe under federal law and the compact to operate Class III gaming.

Daniel Scarpinato, press aide to Gov. Doug Ducey who opposes the casino, said Tuesday his boss is encouraging the state’s lawyers “to explore all options to make sure Arizona’s interests are considered.”

And even if this ruling is not overturned, both Ducey and the Gila River Indian Community have one more line of attack to kill the casino: federal legislation.

The proposal by Republican Congressman Trent Franks would retroactively alter the 1986 law which give the tribe the right to buy the Glendale property in the first place and operate a casino there.

Franks has failed twice to get congressional approval. But Manuel Johnson, spokesman for the Gila River community, said it should be resurrected, saying it would settle the issue once and for all, regardless of whether federal courts say the compact is valid.

“Simply put, the (Tohono O’odham) 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,” Johnson said in a prepared statement.

That claim goes to the heart of both this lawsuit and the federal legislation.

Challengers say Tohono O’odham officials took actions during negotiations they contend led everyone, including voters, to believe that gaming would be limited to reservations that existed in 2002.

For example, they said tribal officials made statements to editorial boards of Tucson newspapers that there would be no expansion of gaming. And they said Tohono O’odham Nation representatives were actively involved with leaders of other tribes in preparing documents in support of Proposition 202, the 2002 initiative that gave tribes the exclusive right to operate casinos, which said “there will be no additional facilities authorized in Phoenix, and only one additional facility permitted in Tucson.”

Bea said none of that matters.

He pointed out that the compact itself says it “contains the entire agreement of the parties.” More to the point, it says that “no other statement, agreement, or promise made by any party, officer, or agent of any party shall be valid or binding.”

The bottom line, said Bea, is that federal law allows the tribe to operate Class III gaming at the Glendale site and nothing in the written deal with the state contradicts that.

Tuesday’s ruling does not end the bid by the tribe to conduct Class III gaming on the site.

The state’s gaming director has refused to issue the necessary permits.

Daniel Bergin is claiming that the tribe had a “secret plan” to build the casino on non-reservation land before the compact was negotiated and voters ratified the language.

He contends the tribe hid that fact. That, he contends, makes the tribe legally unfit to operate the casino.

The tribe disagrees and is asking U.S. District Court Judge David Campbell to remove the hurdle. Campbell as yet to rule.

Separately, the tribe has faced a series of delays in getting the state Department of Liquor Licenses and Control to approve a liquor license. Scarpinato would not comment on that or answer questions whether the governor has interceded.

2 comments

  1. Once again, the citizenry of Arizona were defeated by a fraud upon the United States Constitution in Prop. 202. As of THE INDIAN CITIZENSHIP ACT OF 1924, there are no more “Indians” in the U.S/States of the Union…only U.S./State citizens with “Indian ancestry/race” entitled to no more and no less than every other non-Indian citizen…and yet, this publication asks no questions whereby a select group of U.S./Arizona citizens are made distinguishable because of their “Indian ancestry/race” Why is that? Too much casino money flowing into their coffers?

  2. Interesting…. I’m in support of their rights to operate the casino, after all there are plenty of examples of horribly regressive spending everywhere we look, from clothing to food to alcohol to tobacco, etc., etc…. all of which have about as much return as spending money on gambling.

    More interesting to me is who will be first to build a full-scale, theme park. Not just a coaster park, but a full theme park. With our heat index being lower than Orlando, Cedar Point, Valencia, and Anaheim on many summer days with fewer weather related interruptions and a population close to 5 million, a state fair that has a higher average daily attendance than Disneyland during its 21-day run (even though it’s during the school year and only open 6 days a week!), the demand is very, very strong for such a park.

    The only news is when, and where such a park will be located. With a fraction of the required public investment of a professional football or baseball venue, a theme park can generate nearly 26 times the sales and bed tax revenues of a single NFL stadium! When a population exceeds 4 million people in a metro area, that means the project is financially feasible. It will also result in more convention business, more visitors, and longer average stays. This would probably average 40,000 daily visitors with an average spend in admission, retail, food, lodging of around $200/visitor/day.

    So when will it happen? Within 3 years we should see an announcement. The location…. if up to me, it would have been at MetroCenter mall… keeping the center as a Metro Rail station, then branching off onto the themed indoor ‘streets’ or ‘lands’ leading to the major indoor rides at the locations of former anchor stores. Along the ‘streets’ could be the indoor lines for people to wait to get onto rides that take riders outdoors for just 3-5 minutes at a time, the length of an average ride. This made so much sense to me it was sad to not see something like this happen.

    Other locations in the running… Desert Diamond Casino, Wildlife World Zoo, Talking Stick, Fort McDowell Casino, along the Salt River bed between Central and 7th Street. For me, the most important locations would be the Salt River and the MetroCenter locations… close to mass transit, and keeping it in Phoenix would be a huge windfall for sales tax revenues in these areas…. MetroCenter would probably be best, just for the fact that the area has sadly been coined “GhettoCenter” and is in dire need of a massive overhaul, and building a Wal-Mart SuperCenter is just another nail in the coffin, not just for the once-great mall, but for the area as a whole… it will only further drag down property values and property/sales tax collections and further degrade the sense of community in the area.

    Just some thoughts… sorry for that tangent!

    Ben Bethel
    Owner and General Manager
    The Clarendon Hotel and Spa

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